Mrs Elaine Leahy v Smoke Alarm Testing Services Sats T/A Smoke Alarm Testing Services

[2020] FWC 6077

[2020] FWC 6077

FAIR WORK COMMISSION

DECISION

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

Mrs Elaine Leahy
v
Smoke Alarm Testing Services SATS T/A Smoke Alarm Testing Services
(U2020/5106)

COMMISSIONER HUNT BRISBANE, 12 NOVEMBER 2020

Application for an unfair dismissal remedy – jurisdictional objection – genuine redundancy – position no longer required to be performed by anyone – no consultation requirement – not reasonable in the circumstances to redeploy – jurisdictional objection upheld – application dismissed.

[1] On 17 April 2020, Mrs Elaine Leahy made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that her dismissal from Smoke Alarm Testing Services SATS T/A Smoke Alarm Testing Services (the Respondent) was harsh, unjust or unreasonable.

[2] In her Form F2 – Application for unfair dismissal remedy, Mrs Leahy stated she received a phone call from her employer on 30 March 2020, advising that she was being made redundant “effective immediately” and that the redundancy was not a reflection of her performance. She stated she was not consulted about the redundancy.

[3] On 30 April 2020, the Respondent filed a Form F3 – Employer response to the application, raising a jurisdictional objection to the application, on the grounds that the dismissal was a case of genuine redundancy. The Respondent stated that it undertook a genuine review and restructure of the department in which Mrs Leahy worked, and due to a lack of work available to Mrs Leahy in that location, a succession plan was initiated where, it says, two roles were able to be managed by one employee. Further, the Respondent stated that consultation was not required as Mrs Leahy was not employed under an enterprise agreement or modern award, and that a fair and reasonable redundancy payment was made to Mrs Leahy in accordance with the employment agreement and the National Employment Standards (the NES).

Legislation

[4] Section 385 of the Act provides that a person has been unfairly dismissed if the Commission 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.

[5] As set out above in s.385 of the Act, a person can only be found to have been unfairly dismissed if the Commission is satisfied the dismissal was not a case of genuine redundancy.

[6] Section 389 of the Act provides the meaning of genuine redundancy as follows:

“(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.”

[7] This decision determines the jurisdictional issue as to whether the dismissal was a case of genuine redundancy pursuant to s.389 of the Act. It does not traverse merit issues.

Background

[8] Mrs Leahy commenced employment with the Respondent on 19 February 2018 as its Business Development Manager in Queensland (QLD BDM). She worked in this position until 30 March 2020 upon being informed the role was made redundant.

[9] Management representatives held three meetings in late March 2020 as the COVID-19 pandemic became evident. The meetings occurred on 23, 25 and 30 March 2020, attended by Mr Jeremy Batten, Director, Mr Daniel Kramarzewski, General Manager, Ms Rosie Ricketts, Business Systems Manager, and Ms Amber Mckenzie, Human Resources.

[10] From around 23 March 2020, members of the sales department were requested to take annual leave in order to lower the accrual on the balance sheet. Mrs Leahy declined this offer.

[11] As a result of the three meetings held, it was determined the duties of the QLD BDM could be absorbed by another person within the business, and the QLD BDM position would therefore be made redundant, effective immediately.

[12] Mrs Leahy was advised by Ms Mckenzie during a telephone conversation on 30 March 2020 that her role was being made redundant, further to which Mrs Leahy received a written termination letter as follows:

“30th March 2020

Private and confidential

Elaine Leahy
[redacted]

Dear Elaine,

Termination of your employment by reason of redundancy

The purpose of this letter is to confirm the outcome of a recent review by Smoke Alarm Testing Services (Employer) of its operational requirements, and what this means for you.

As a result of operational requirements in Queensland and the uncertain times with the current COVID-19 pandemic, the position of QLD Business Development Manager is no longer needed. Regrettably this means your employment will terminate effective immediately. This decision is not a reflection on your performance, we have determined that there is no further requirement to have two employees focusing on sales within the state of Queensland.

Smoke Alarm Testing Services have made the following attempts to find you an alternative position within the enterprise and any associated entities:

1. Considered the opportunity to redeploy you a position in our Yatala branch; and

2. Considered the opportunity to redeploy you a position with our other entity in New Zealand.

Due to the government enforced travel restrictions and freeze we are having with recruitment because of the uncertainty that COVID-19 has brought, Smoke Alarm Testing Services have deemed these positions/location changes is not viable.

Based on your length of service, your notice period is 2 weeks however, we have decided to end your employment effective today, March 30^th, 2020 and pay your notice period and leave entitlements out in full in the next pay run.

Due to your employment ending because of redundancy, you will be paid 11 weeks in accordance with the National Employment Standards which represents:

•  6 weeks of redundancy pay of $6,923.10;

•  3 weeks’ notice period of $3,461.53 (2 weeks of notice period and an additional week for employees over 45 years of age); and

•  85.342 hours of annual leave entitlements -$2,591.36.

A total of $12,975.99 has not included tax.

You will receive your normal weekly wage in tomorrow’s pay run for the week conducted on March 23^rd, 2020 and your commission payment for the month of March 2020 (amount to date $256.00) will be paid on April 15, 2020.

You may seek information about minimum terms and conditions of employment from the Fair Work Ombudsman. If you wish to contact them you can call 13 13 94 or visit their website at

Redundancy and leave payments will usually give rise to waiting periods for Centrelink payments. You should contact Centrelink to find out how long you have to wait to receive any applicable benefits. The best way to do this is to lodge a claim for payment.

We thank you for your valuable contribution during your employment with us. Please contact me if you wish to obtain a reference in the future.

Yours sincerely,

Amber Mckenzie
Human Resources” 1

[13] It is not disputed that redeployment to a role based in New Zealand was unviable given the COVID-19 pandemic, and it is not disputed that the redundancy payment made was compliant with the employment agreement and the NES.

Hearing

[14] I convened a telephone hearing of the parties on 10 July 2020. Mrs Leahy appeared and gave evidence on her own behalf. Ms Amber Mckenzie, Human Resources, appeared for the Respondent. During the hearing it became necessary for Ms Mckenzie to give oral evidence. Mr Jeremy Batten, Director, gave evidence and was cross-examined. Witness statements of Ms Rosie Ricketts, Business Systems Manager, and Mr Daniel Kramarzewski, General Manager were admitted into evidence. They were not required to attend the hearing as Mrs Leahy did not have questions of those two witnesses.

Evidence of the Respondent

Evidence of Jeremy Batten

[15] Mr Batten’s evidence was that he was part of the restructuring meetings held on 23, 25 and 30 March 2020. Mr Kramarzewski, Ms Ricketts and Ms Mckenzie were also in attendance at the meetings. 2

[16] Mr Batten confirmed that the HR notes developed by Ms Mckenzie are correct, and the meetings were held to discuss immediate restructure of the Respondent’s sales department across Australia.

[17] Mr Batten’s evidence was that the following topics were discussed at the three meetings:

“1. 3 meetings were conducted over a 7-day period to discuss the need for operational change in the sales department.

2. SATS management collated reports on active clients and phone calls to and from the company phones.

3. SATS researched the amount of work available to each employee and their desire to travel outside of their region to obtain more clients.

4. A discussion was made with options to consider. COVID-19 enforced quick changes that are still currently being reviewed from a business perspective.

5. All members in the sales department were offered to take their annual leave as a request to lower the balance sheet in the business. This decision would open us up to apply for loans during COVID-19 to relieve financial distress. Elaine Leahy, with other team members of the team refused.

6. It would be unreasonable to set future structure and KPI’s as there is not enough clientele for Elaine Leahy to achieve new goals.

7. The only role that would be able to be successfully achieved by another person in the Company is the role of QLD Business Development Manager.

8. Redundancy was agreed upon, effective immediately. Payment in lieu for notice period will be paid out in full with the redundancy payment.

9. SATS staff member to pick up company property as a sense of urgency. Amber to make the call and provide redundancy letter.” 3

[18] Mr Batten gave evidence that following the 7-day consultation between management, it was deemed from a business perspective that the need to have two employees working in sales in Queensland was not a viable business decision. 4

[19] Mr Batten could not provide any evidence surrounding the phone calls made to Mrs Leahy as he was not present when Ms Mcenzie made the call to Mrs Leahy. 5

[20] Mr Batten stated that he had spent many hours running numbers, looking at the efficiency and the return on investment. He stated that he investigated whether Mr Brad Hay, QLD State Sales Manager, could handle “an extra phone call per day and two emails per day”. He considered that he could, and therefore Mr Hay could absorb some of Mrs Leahy’s duties into his work.

[21] Although Mrs Leahy was dismissed on the same day that the JobKeeper payments were announced by the Commonwealth Government, ultimately the Respondent did not qualify for JobKeeper. It experienced a 28% downturn in revenue, just shy of the 30% required to be eligible for JobKeeper payments to its eligible employees.

[22] In cross-examination, when asked about the source of his submission that Mrs Leahy did not wish to travel outside of her region on the Sunshine Coast, Mr Batten stated he was not suggesting that Mrs Leahy “did say or didn’t say” that, rather it was based on feedback from others.

[23] In cross-examination it was put to him that he was incorrect in assuming that Mrs Leahy did not want to travel. He replied that whatever the source of the information, it weighed only 1% as to the weight in the determination to make Mrs Leahy’s role redundant. He stated it was a decision made having regard to the workload, and where the work could be redistributed to ensure a smooth running of the business.

[24] His evidence was that, to the best of his knowledge, at 30 March 2020 there were no roles to which Mrs Leahy could be redeployed due to a head count freeze and a standard approach to not employ new staff in the first quarter.

[25] I pointed out to Mr Batten that in the restructure document, admitted into evidence, there is a reference to redeployment options being considered. His evidence confirmed that the single role available in New Zealand was not able to be offered to Mrs Leahy as New Zealand was in lockdown. As to the customer service role at Yatala, he stated that he had held serious concerns as to the requirement for Mrs Leahy to travel two hours each way from her home on the Sunshine Coast to Yatala, positioned at the northern end of the Gold Coast. He considered that it would not be safe to do so each day.

[26] Further, his evidence is that he considered Mrs Leahy to be too highly skilled to take on the customer service role. He considered that she would soon become bored and he considered that the role was beneath her skillset.

[27] Mr Batten stated that he is not regularly in the office, only attending approximately once every eight weeks; he runs the business remotely. He stated to the best of his knowledge there was no role available at Yatala, and the discussion was one about the potential to create a role for Mrs Leahy.

[28] When questioned about the customer service role advertised on Seek on 16 April 2020, Mr Batten stated that while there was a head count freeze, if an employee left the business, the relevant managers were authorised to replace the person. Ms Mckenzie had earlier given evidence that the role was created on 16 April 2020 and advertised that same day (as provided below), and when questioned about this Mr Batten said, “If someone’s given notice, we would advertise that same day”.

[29] During the hearing Ms McKenzie was asked to clarify this point and stated an employee had resigned, but during the COVID-19 recruitment freeze, the additional work had been distributed among the team. She stated the team were inundated, and because it appeared that COVID-19 had “calmed down”, as at 16 April 2020, the Respondent wanted to reopen that role. It was the evidence of Ms McKenzie and Mr Batten that as it was not a new person for the purposes of the overall headcount, Mr Batten’s authorisation was not required.

Oral evidence of Ms Mckenzie

[30] Ms McKenzie stated that four managers had determined the Customer Service Representative role should be established on 16 April 2020; herself, Mr Kramarzewski, Ms Ricketts and the Customer Service Manager. The decision was made on 16 April 2020 and the role advertised immediately.

[31] Ms Mckenzie declared the role to be a very different role to the one held by Mrs Leahy. It was a junior role and the salary reflected it. Mrs Leahy’s salary as QLD BDM was $60,000 plus superannuation, as opposed to the junior role being between $35,000 and $39,999.

[32] When asked in cross-examination why the Respondent could not have agreed to allow Mrs Leahy to perform the Customer Service Representative role from her home, at the time when many Australians were working from home, Ms Mckenzie replied that the Respondent only allowed a very small number of employees to work from home, and only for a short period. Only one person who had it within their contract, together with two others who did not have a team of people on the premises at Yatala were permitted to work from home on a longer-term basis. All other employees, including Ms Mckenzie needed to attend for work, and where those employees had school-aged children, the children were permitted to attend school and vacation care on account of the parents’ work being essential work. The only exception to this is for a short period where a small number of employees were sent home as the floor spacing at the Yatala operations demanded social distancing between employees. Once these requirements were relaxed, employees were required to return to the workplace.

[33] Ms Mckenzie stated that there were not any roles available at or around 30 March 2020, and the discussion around a role in NZ, and a Customer Service role at Yatala was as to whether the Respondent could create a role for Mrs Leahy.

[34] In cross-examination Mrs Leahy suggested to Ms Mckenzie that some employees had left the Respondent’s business from January 2020. Ms Mckenzie named individuals during the hearing who had left employment and named their successors; all employed in February and March 2020, before the decision to make Mrs Leahy redundant was made. She confirmed that there were no vacant positions as at 30 March 2020.

[35] The Customer Service Representative role advertised on 16 April 2020 has now been filled. The person was originally employed and paid an annual salary of $38,000, however this has increased to $39,999.

Evidence of Ms Ricketts

[36] Ms Ricketts filed a witness statement in this matter. Ms Ricketts is the Business Systems Manager of the Respondent.

[37] Ms Ricketts’ evidence confirmed she was part of the restructuring meetings held on 23, 25 and 30 March 2020, and confirmed the matters discussed at these meetings as described by Mr Batten above. It is noted that her evidence suggests four meetings were held in March, however this is taken to be a typographical error, or if it is not in error, it is immaterial.

[38] Ms Ricketts could not provide any evidence surrounding phone calls made to Mrs Leahy as she was not present with Ms Mckenzie when calls were made. 6

Evidence of Daniel Kramarzewski

[39] Mr Kramarzewski filed two witness statements in this matter. Mr Kramarzewski is the General Manager of the Respondent.

[40] Mr Kramarzewski’s evidence was that he was part of the restructuring meetings held on 23, 25 and 30 March 2020. His evidence confirmed that the HR notes prepared by Ms Mckenzie are correct, and that the discussions related to restructuring the Respondent’s sales department across Australia. His evidence further confirmed the matters discussed at these meetings as described by Mr Batten above; and that it was determined that it was not viable to have two employees working in sales in Queensland. 7

[41] He stated he could not provide any evidence surrounding phone calls made to Mrs Leahy as he was not present with Ms Mckenzie when calls were made. 8

[42] In his additional witness statement, Mr Kramarzewski stated:

“I can confirm that since the role of QLD Business Development Manager was made redundant, Bradley Hay has successfully merged the role and clients into his daily responsibilities with ease. Bradley Hay being the State Sales Manager, travels throughout Queensland as per normal and is available to visit and maintain strong relationships with Elaine Leahy’s previous clients.

The role of the QLD Business Development Manager has not been replaced, and there is no need to sort this position in the near future”. 9

Documents

[43] A number of documents were filed at the time the Respondent filed witness statements of witnesses. I have had regard to these documents, noting that they were not attached to particular witness statements, however given the Respondent was self-represented, I have decided to accept the documents as evidence.

[44] The notes prepared by Ms Mckenzie on 25 March 2020 note the following was discussed:

“AM: Still do need to discuss what we are going to do with Elaine.

AM: After reviewing her reports, I have researched her area the workload is so minimum on the Sunshine Coast.

AM: Do not see a requirement to have two bodies operating in QLD when the work is just not there.

JB and DK: Yep

JB: This was something brought up prior to her employment but we allowed Brad to make this call as he was going to be her direct manager.

JB: We were under the impression that Elaine would also travel extensively for this role to make it achievable.

JB: She did not want to travel that far from her house.” 10

[45] The Respondent prepared a document on 26 March 2020, comparing the roles, responsibilities and actions of the NSW State Sales Manager, NSW/ACT Business Development Manager, QLD State Sales Manager and QLD Business Development Manager. The document included the following:

“QLD State Sales Manager

•  Resides in the Brisbane CBD area/ travels to and from the Gold Coast regularly

•  Willing, able, and currently participates in interstate travel

•  Sustainable workload/ real estate agencies available in location of residence

•  Technicians and Electricians resident within a reasonable distance from this

•  and are able to proactively service the client’s properties.

QLD (Sunshine Coast) Business Development Manager

•  Resides in Noosa Heads region.

•  Previously refused to and is uncomfortable travelling outside of her district.

•  Resides in small area in QLD where the workload/ real estate agencies available is not sustainable. The location of work and limited access to clients is an indicator that this role is not needed.

•  There is limited technicians available to service the Noosa and Sunshine Coast location with many refusing to travel.” 11

[46] The Respondent submitted monthly sales reports dating from July 2019 to March 2020. These demonstrated that in August 2019, Queensland’s sales figures were 943, and the sales figures in January, February and March 2020 were 192, 274 and 258 respectively. The NSW Business Development Manager during these same months had totals of 764 in August 2019, and totals of 588, 1150 and 1835 in the first three months of 2020. 12 The Respondent submitted:

“These reports show, the two QLD Employees, Business Development Manages being: Elaine Leahy and State Sales Manager being: Brad Hay have lower figures than the NSW Employees, Business Development Manager being Nick Xipakis and State Sales Manager, Gavin Coulson encouraging the decision of restructure requirement in Queensland.”  13

[47] The Respondent undertook an examination of Mrs Leahy’s phone calls, requiring her to make roughly 15-20 cold calls per day, visit/door knock up to 20 agencies per day, and bring on a minimum of 500 properties per month. Having reviewed Mrs Leahy’s phone bills, the Respondent concluded the calls were not achieved.

Respondent’s Submissions

Genuine redundancy

[48] The Respondent submitted that it found the role of QLD BDM was “practically reasonable” to be merged into the role of QLD State Sales Manager, the role held by Mr Hay. Mrs Leahy had approximately 50 clients, all of whom Mr Hay has now successfully adopted.

[49] The Respondent submitted Mrs Leahy was not employed under a modern award or enterprise agreement, and therefore a consultation obligation did not exist.

[50] As to redeployment considerations, the Respondent stated that redeployment was deemed impracticable for the following reasons:

(a) COVID-19 restrictions across the world resulting in unavailability to travel between countries and/ or states at the time of redundancy; and

(b) A national and international recruitment freeze within the company and its separate entity due to the uncertainty of COVID-19 and unavailability of appropriate information confirming the Companies stance of being classed as “essential” at the time of redundancy; and

(c) Apart of the operational changes, Smoke Alarm Testing Services are implementing a strict non-work from home policy unless it is deemed absolutely necessary due to employees abusing this privilege in all departments of the business. It was not appropriate to offer Elaine any role that would allow her to work from home under these operational changes. Smoke Alarm Testing Services only have one operational office, that is located in Yatala on the Gold Coast which is some 2 hours and 6 minutes away from Elaine Leahy’s location. 14

[51] At the hearing, the Respondent made oral closing submissions. It was submitted that the Respondent had a financial reason to make the decision to make Mrs Leahy’s role redundant. It concluded that it could transfer the duties performed by Mrs Leahy into Mr Hay’s existing role, and so far, this has operated effectively.

[52] The Respondent submitted it needed those financial changes in effecting the redundancy, and that the role is no longer required to be filled by anyone. It submitted it is still undergoing further changes in the sales department to increase revenue.

[53] As to redeployment, the Respondent submitted it did try hard to find an alternative role, however no roles were available at the time of effecting Mrs Leahy’s redundancy. There was no financially appropriate way for Mrs Leahy to be redeployed in the Respondent’s business. As to junior salaries, a less experienced person was brought into the business in late April 2020. The Respondent submitted that Mrs Leahy was far too skilled to perform the role, would have become bored, and the travel from her home to Yatala would have required excessive travel.

[54] If the Commission determined that the dismissal was not the case of a genuine redundancy, the Respondent submitted that making Mrs Leahy redundant was not a personal attack on her.

Evidence and Submissions of Mrs Leahy

[55] Mrs Leahy gave evidence on her own behalf which included an email of 29 June 2020 which I have taken to be in the form of a witness statement. Mrs Leahy was aggrieved that the Respondent had held discussions between management representatives who concluded, incorrectly, she puts, that she was unwilling to travel. She disputes the Respondent’s finding.

[56] Mrs Leahy appeared to me to understand the three limbs the Commission is required to determine when examining if a dismissal is a genuine redundancy. Whilst some of Mrs Leahy’s written material and oral evidence went to the aggrieved position that she was not willing to travel, she understood that the Commission’s job was firstly to determine if the Respondent no longer required anybody to perform her role.

[57] In answering questions from me, Mrs Leahy accepted that to “some degree” the first limb had been met, and she accepted that Mr Hay had absorbed her duties into his role. In further questioning, Mrs Leahy indeed accepted that the Respondent no longer required her job to be performed by anyone because of changes in the operational requirements of the Respondent’s business.

[58] Mrs Leahy further accepted that she had not been employed pursuant to any modern award of the Commission, nor did an enterprise agreement cover her employment. She stated that the phone call informing her of her redundancy had come as a total shock. She was advised during the call that she had 10 minutes to gather her company property, including a vehicle, laptop, ipad, iphone and fuel card, and these would be repossessed by persons attending upon her home. In her rush and shock in trying to prepare all of these possessions in an extremely short time frame, she accidentally removed the car’s service book, which she later express posted to the Respondent. She stated that she is not someone who would keep or damage company property.

[59] Relevant to the Respondent’s obligation to make efforts to redeploy her, Mrs Leahy accepted that it was not possible for her to have been redeployed to New Zealand at the time.

[60] In her oral evidence she stated that she knew that the Respondent was short of staff as a result of having lost employees over January and February 2020. I reminded Mrs Leahy that Ms Mckenzie had given evidence to the Commission that those roles had well and truly been filled by February and March 2020, and Ms Mckenzie had named those individuals who had filled the roles. Mrs Leahy did not dispute Ms Mckenzie’s oral evidence.

[61] Relevant to the suitability of any customer service role at Yatala, it was Mrs Leahy’s evidence that she would have accepted the junior role, even though it was paying only approximately $40,000 per annum, as she considered that it was better than nothing, and she enjoyed working for the Respondent.

[62] She considered that it was unfair for the Respondent not to have considered her for a role and the Respondent should have allowed her to work from home instead of travelling approximately two hours each way. She stated that others had been allowed to work from home, and she could have too, although she also understood that it was the Respondent’s prerogative as to where the work was performed. She considered that there would have likely been a ‘turn around’ in the Respondent’s business as the economy improved.

[63] I questioned Mrs Leahy as to whether she would have undertaken travel from her home on the Sunshine Coast to Yatala each day, being a four-hour return trip, for a salary of approximately $40,000. Mrs Leahy responded that she would not have agreed to undertake the daily travel.

[64] I questioned Mrs Leahy as to whether she had applied for the role when she saw it advertised on 16 April 2020. She stated that she did not, and she considered that had the Respondent wanted her, they would have offered her the role and not advertised it.

[65] As to the requirement that the person’s employer no longer required the person’s job to be performed by anyone, Mrs Leahy stated that she was not surprised that Mr Hay has successfully assimilated her work into his own, as she had put a lot of work into training the agencies she had onboarded, having kept detailed logs and notes ensuring that anyone would be able to see “exactly where the agency was at” and “what had been discussed at each visit”. 15 She submitted this would have greatly impacted Mr Hay’s ability to easily assimilate her role.

[66] Mrs Leahy submitted that on 16 April 2020, a customer service position was advertised on Seek.com, and therefore she believed there was ample opportunity to redeploy her within the Respondent in some capacity and at least for some time.

[67] She reiterated that at the time of her redundancy, she remained open to the possibility of redeployment requiring travel.

[68] Mrs Leahy stated that she had always been extremely proud to be an employee of the Respondent, and believed she was representing a great product. She noted she had built a fantastic rapport with active clients and target agencies. She submitted she took pleasure in being part of a great team, and had positive and respectful relationships with everyone from the customer service team through to the other sales team members. 16 In support of these submissions, Mrs Leahy attached a copy of an email to Mr Hay from one of her active clients following her redundancy, and a testimonial from one of her active clients on the Respondent’s website. The email to Mr Hay stated:

“Hi Brad

Thank you for your email.  I am absolutely devastated to hear of Elaine's redundancy today.

Elaine was such an asset to your Company and to those of us who were fortunate enough to have her looking after our Portfolios of properties.

I first met Elaine a few years ago when I was working for a Real Estate Agency in Noosa.  She was always incredibly hard working and professional and built long lasting relationships with everyone she came into contact with. 

I was thrilled to reconnect with her again 2 years ago when she commenced her new role with SATS. 

 A year later I moved to another Agency and immediately rang Elaine to come and help me to move all my properties to SATS.  This was an incredibly stressful time for me trying to sort out a portfolio that was in a big mess.  So I basically handed all the Smoke Alarm work to Elaine to do as I did not have time.  She went over and above her line of duty and implemented the whole system for me, sorting out my 94 properties to be moved to SATS with little input from myself.  

This year I started my own Company and again Elaine was top of my list to call.  Once again I handed her all my properties and asked her to please sort everything for me which she did.

I know Covid-19 is presenting incredible challenges to millions of people, but even in unprecedented times I do not understand why Companies do not hang on to exceptional employees like Elaine especially as the Government is trying to help as much as they can.

I for one know that Elaine's departure will be an enormous loss to your Company.  She will be sorely missed by many Agents like myself who have relied heavily on her to keep the ball rolling and take enormous pressure off us as we know she is so good at what she does and we can trust her 100%.”

[69] The testimonial on the Respondent’s website read:

“We transferred our entire property management portfolio to SATS for all of our smoke alarm requirements. The service we have received during the transition period and ever since then, has been outstanding, with all emails and phone calls returned within just a few hours. We couldn’t recommend them enough.”

[70] Mrs Leahy submitted that the Respondent had suddenly implemented a “non-work from home policy”, despite many staff having worked from home during her two years with the Respondent. She stated this flexibility had been a feature of their modern work environment, and that she did not understand why this policy was suddenly enforced.

[71] Mrs Leahy submitted that for these reasons, her dismissal was not a case of genuine redundancy, and was harsh, unjust or unreasonable.

Consideration

[72] I turn now to a consideration of the criteria set out in s.389 of the Act. For Mrs Leahy’s dismissal to be a case of genuine redundancy, the Respondent must meet each of the criteria set out in s.389 of the Act, where relevant.

s.389(1)(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

[73] The test to be considered where there has been a reorganisation or redistribution of duties is whether the employee has any duties left to discharge. 17 Where there is no longer any function or duty to be performed by an employee, his or her position becomes redundant even where aspects of that employee’s duties are still being performed by other employees.18

[74] The decision in Kekeris v A. Hartrodt Australia Pty Ltd T/A a.hartrodt 19 considered this point and established that the test is whether the previous job has survived the restructure or downsizing, rather than a question as to whether the duties have survived in some form. The Full Bench in Ulan Coal Mines Limited v Howarth and others [2010] FWAFB 3488 considered and applied the decision of Ryan J in Jones v Department of Energy and Minerals (1995) 60 IR 304 and said:

“[17] It is noted that the reference in the statutory expression is to a person’s “job” no longer being required to be performed. As Ryan J observed in Jones v Department of Energy and Minerals (1995) 60 IR 304 a job involves “a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employees’ organisation, to a particular employee” (at p. 308). His Honour in that case considered a set of circumstances where an employer might rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly-created positions. In these circumstances, it was said that:

“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…” (at p.308)”

This does not mean that if any aspect of the employee’s duties is still to be performed by somebody, he or she cannot be redundant (see Dibb v Commissioner of Taxation (2004) FCR 388 at 404-405). The examples given in the Explanatory Memorandum illustrate circumstances where tasks and duties of a particular employee continue to be performed by other employees but nevertheless the “job” of that employee no longer exists.”

[75] At the hearing Mrs Leahy conceded that the first limb had been met by the Respondent. I am satisfied that the Respondent no longer required Mrs Leahy’s job to be performed by anyone because of changes in the operational requirements of the Respondent’s business.

s.389(1)(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

[76] It is not disputed that Mrs Leahy was not employed under an enterprise agreement or modern award. I have satisfied myself that Mrs Leahy’s employment was not covered by a modern award taking into account the industry in which she worked, and the work performed by her. I am further satisfied that her employment was not covered by an enterprise agreement. Accordingly, there is no consultation obligation for the Respondent to have satisfied.

s.389(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.

[77] In Hallam v Sodexo Remote Sites Australia Pty Ltd 20a Full Bench of the Commission stated the following:

“…..Subsection 389(2) states that 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. Subsection 389(2) places no obligation on an employer to redeploy, or to do everything possible to achieve a redeployment outcome. The exception is applied at the time of dismissal. It operates so that a dismissal that would otherwise be a case of genuine redundancy under subsection 389(1) will not be so if it would have been reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise, or with an enterprise of an associated entity of the employer.” [references omitted]

[78] As the Full Bench observed in TAFE NSW v Pykett, 21 to show that it would have been reasonable for the Respondent to redeploy Mrs Leahy, it is not necessary to identify a particular job or position in which Mrs Leahy could have been redeployed. However, the Commission must be satisfied on the balance of probabilities, and based on the evidence, that there was a ‘job or a position or other work’ to which it would have been reasonable to redeploy Mrs Leahy.

[79] Mrs Leahy contends that it would have been reasonable to redeploy her in the position of Customer Service Representative, with an indicative annual salary between $35,000 - $39,999, with permission to work from home.

[80] It is conceded and I so find that it was not unreasonable to fail to redeploy Mrs Leahy to a role in New Zealand given the circumstances around international travel at the time.

[81] Relevant to the Customer Service Representative role, purportedly available as at 30 March 2020, on the evidence before me I am satisfied that it was not a vacant role at the time, and any discussion attempting to redeploy Mrs Leahy was an attempt at goodwill to try and create a suitable role for Mrs Leahy. While I accept the Respondent may have not had a solid factual basis to assume that Mrs Leahy did not want to travel extensively within her region and beyond, it ultimately is not a relevant consideration given the only role that could have been created was a junior role at Yatala.

[82] The Respondent, an in particular Mr Batten concluded that it would not be safe to require Mrs Leahy to undertake travel in her time and at her expense of approximately four hours per day for a role paying approximately $20,000 less per annum on her already modest wage. I accept Mr Batten’s concerns as genuine and his decision as reasonable. Mrs Leahy confirmed during the hearing that she would not have agreed to undertake the daily commute.

[83] Where Mrs Leahy has maintained that it would have been reasonable to redeploy her into the Customer Service Representative role and allow her to work from home, I accept Ms Mckenzie’s evidence that this was not an arrangement permitted by the Respondent. I accept that only a very small number of employees had been permitted to work from home, and the Respondent’s decision to require all other employees to attend for work was a reasonable decision to make and Mrs Leahy was not treated any differently to like employees.

[84] Where the Respondent:

(a) Did not have a vacant position for Mrs Leahy but was attempting to create one for her; and

(b) Considered the role to be far too junior for her such that she was likely to become bored and the duties within it were far below her superior skillset; and

(c) Considered that it would not be safe for Mrs Leahy to commute four hours per day; and

(d) Decided against allowing the role of Customer Service Representative to work from home at that point in time;

I am satisfied that it would not have been reasonable in all the circumstances to redeploy Mrs Leahy to any position, job or duties with the Respondent or any of its associated entities.

[85] For all of the reasons set out above I am comfortably satisfied that Mrs Leahy’s dismissal was a case of genuine redundancy because as at 30 March 2020:

(a) the Respondent no longer required Mrs Leahy’s job to be performed by anyone because of changes in the operational requirements of its enterprise;

(b) there was no obligation to consult as Mrs Leahy’s employment was not covered by a modern award or enterprise agreement; and

(c) it would not have been reasonable in all the circumstances for Mrs Leahy to be redeployed within the Respondent’s enterprise or the enterprise of an associated entity of the Respondent.

Conclusion

[86] Mrs Leahy’s dismissal by the Respondent on 30 March 2020 was a case of genuine redundancy within the meaning of s.389 of the Act. Consequently, she has not been unfairly dismissed.

[87] The application is dismissed. An Order [PR724507] to that effect will be issued concurrently with this decision.

COMMISSIONER

Appearances:

Leahy E, the Applicant

McKenzie A, Human Resources Advisor for the Respondent

Hearing details:

10 July 2020, Brisbane (By Telephone)

Printed by authority of the Commonwealth Government Printer

<PR724491>

 1   Annexure to Applicant’s Form F2 – Application for unfair dismissal remedy.

 2   Witness Statement of Jeremy Batten.

 3   Ibid.

 4   Ibid.

 5   Ibid.

 6   Ibid.

 7   Witness Statement of Daniel Kramarzewski dated 21 May 2020.

 8   Ibid.

 9   Witness Statement of Daniel Kramarzewski dated 1 June 2020.

 10   Respondent’s submissions – Annexure: HR Meeting Notes- 25.03.2020.

 11   Respondent’s submissions – Annexure: ‘sats smoke alarm testing services; Business case for restructuring purposes in Australia’.

 12   Respondent’s submissions – Annexure: Sales Reports June 2019- March 2020.

 13   Respondent’s submissions – Annexure: Sales Reports June 2019- March 2020.

 14   Respondent’s submissions – s389.

 15 Applicant’s “389 of the Fair Work Act – Submission”.

 16   Applicant’s submissions.

 17   Jones v Department of Energy and Minerals [1995] IRCA 292 (16 June 1995), [(1995) 60 IR 304 at p. 308 (Ryan J)]; cited with approval in Ulan Coal Mines Limited v Howarth and others [2010] FWAFB 3488 (Boulton J, Drake SDP, McKenna C, 10 May 2010) at para. 17, [(2010) 196 IR 32]

 18   Ibid.

 19   [2010] FWA 674.

 20   Hallam v Sodexo Remote Sites Australia Pty Ltd [2017] FWCFB 6847 at [20].

 21    [2014] FWCFB 714, (2014) 240 IR 130 at [36].