Mrs Joycelyn Wright v MSS Security Pty Limited T/A MSS Security
[2015] FWC 3232
•15 MAY 2015
| [2015] FWC 3232 [Note: An appeal pursuant to s.604 (C2015/4199) was lodged against this decision - refer to Full Bench decision dated 9 September 2015 [[2015] FWCFB 6172] for result of appeal.] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mrs Joycelyn Wright
v
MSS Security Pty Limited T/A MSS Security
(U2014/8865)
SENIOR DEPUTY PRESIDENT RICHARDS | BRISBANE, 15 MAY 2015 |
Application for relief from unfair dismissal - jurisdictional objection under s.389 upheld.
[1] This decision concerns an application by Ms Joycelyn Wright under section 394 of the Fair Work Act 2009 ("the Act") by which Ms Wright seeks an unfair dismissal remedy in relation to the termination of her employment by MSS Security Pty Ltd T/A MSS Security (“MSS”).
[2] Ms Wright performed duties as a Customer Service Supervisor at the Rockhampton airport, where she performed the role as a kerbside supervisor. This position appears to involve supervising the security services in the kerbside operations at the airport and coordinating the work of the various MSS kerbside security officers, as well as liaising with relevant stakeholders about security services issues.
[3] Ms Wright had performed this role since April 2013, at which time she had entered into a contract of employment with MSS (though she contends it to be otherwise). Ms Wright’s salary was $57,200 per annum plus 9.5% superannuation. Prior to entering the contract of employment the Applicant had been employed to perform aviation screening duties.
[4] Ms Wright’s dismissal took place on 4 September 2014.
[5] Ms Wright’s employer contends that the dismissal was a result of a genuine redundancy for the purposes of s. 389 of the Act. MSS therefore objects to the substantive application being dealt with for reason Ms Wright in its view is not an employee who could be said to be unfairly dismissed.
[6] Section 389 of the Act provides 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.
[7] The onus to make out the grounds under section 389 of the Act falls upon the employer.
Were there genuine operational reasons for the redundancy?
[8] MSS contends that Ms Wright's position was no longer required owing to operational changes. The operational changes that affected its business arose from a changed contractual requirement communicated to it by its client, the Rockhampton Regional Council (“the Council”), which is responsible for the provision of checked baggage screening and kerbside services at the Rockhampton airport.
[9] The employer led evidence (through Mr Claudio Grasso - the Aviation Contract Manager for MSS) that it had been contacted by the Rockhampton Regional Council on 23 July 2014 in respect of a proposed restructured roster at the Rockhampton airport.
[10] It is a term of the contract between the Council and MSS - which appears to have been reached on 7 October 2013 - that the Council has a right to vary the service contract or increase or decrease the extent of the services, or otherwise omit in all or part the services supplied by MSS.
[11] At the time of tendering, MSS included a proposal to provide a single point of contact servicing both the security and customer assistance services and the site supervisor for passenger screening. This element of the tender was not implemented initially. The tender documentation which included this proposal formed part of MSS’ evidentiary case. It read relevantly:
“We believe the creation of a single point of contact servicing both the Security and Customer Assistance Services and the Site Supervisor for passenger screening at Rockhampton airport, would provide consistency and greater visibility to both organisations. This role will be responsible for all operational matters of the Security and Customer Assistance Services (which would include aviation security screening and provide a single point of contact and consistency to Rockhampton Regional Council.
[...] There are obviously key benefits of combining the two roles and in particular a saving to Rockhampton Regional Council.” (sic)
[12] Ms Wright, as mentioned above, had been employed as the Security and Customer Service Supervisor.
[13] The substance of this proposal was to consolidate the two supervisory positions at the airport (one being the airport Aviation Protection Screening Supervisor position and the other being Ms Wright’s position) into the one position of airport supervisor.
[14] Mr Grasso gave evidence that the reconfiguration of the services allowed it to fulfil its contractual obligations with the Council more effectively as the operational change freed up resources that would be applied to other priority areas as well.
[15] The discussions between the Council (represented by Mr Heard) and Mr Grasso appear to have continued between 23 July 2014 and 30 July 2014.
[16] In an attachment headed “Kerbside Security Options” which was attached to an email to the Council representative dated 30 July 2014, Mr Heard, set out the Council’s views as to the roster requirements it considered were necessary to its needs. Mr Heard indicated the Council wished to have a composite supervisory position (with the kerbside duties effectively being carried out by the screening supervisor - Mr Harris).
[17] Ms Wright's supervisory position was no longer required and its surviving tasks and duties were reassigned (in large part to Mr Harris).
[18] The Explanatory Memorandum to the Fair Work Bill 2008 provides some insight into the scope of meaning of a redundancy as contemplated under the Act:
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 a 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. [...] [My emphasis]
Was there a redundancy for an operational reason?
[19] Mr Grasso led evidence that established that Ms Wright’s position was no longer required by its client (given its preference for a composite supervisory position) and therefore was no longer required by MSS as a supplier of services to the client. Mr Grasso’s evidence of the conversations he had had with the Council (and in respect of which he was unmoved in cross examination) was buttressed by email exchanges he had had with Mr Heard (to which I have referred in part above).
[20] MSS’ decision-making accords with the scope of meaning of a redundancy arising from a demonstrated operational circumstance.
[21] MSS led evidence through Mr Mark Harris, who is the aviation protection supervisor who effectively absorbed the supervisory functions from Ms Wright's position - that he had not been required to employ any other employees following Ms Wright’s position being made redundant. He also indicated in his evidence that having absorbed the various supervisory functions of Ms Wright, he had discovered that the kerbside team was self maintaining in that it did not require any additional work of any great scale on his behalf.
[22] Ms Wright contended that the position was not made redundant. She contended instead that her "job had been given to Mark Harris”. Ms Wright contended that because the tasks associated with the supervisory position had survived, the position could not therefore be said to have been redundant.
[23] But this is evident from the above discussion, the reassignment of the supervisory tasks embedded within his rights former position does not detract from and is consistent with the scope of meaning of a redundancy for operational reasons.
[24] Ms Wright raised a number of other issues by which she endeavoured to demonstrate that the decision to make her position redundant was not authentic.
[25] Claims by Ms Wright that the decision to make her position redundant was a consequence of a letter written to MSS on 30 July 2014 which was critical of a proposal by the Council to restructure the parking arrangements at the airport, are not able to be reconciled with the factual evidence.
[26] The decision-making in relation to Ms Wright’s position arose before this time as the supervisory model was reviewed by Council and was unrelated to the correspondence of 30 July 2014. In any event, it would appear to be a somewhat unreasonable proposition to claim that the change in the contractual relationships with the Rockhampton Regional Council arose because of receipt of Ms Wright’s correspondence and was executed on that same day in response to that correspondence. Ms Wright’s correspondence did not disclose such a mischief as to warrant such a dramatic course of events, which would have required collusion with Council.
[27] Ms Wright approached the Rockhampton Regional Council following her termination and sought clarification as to whether or not the Council was not involved in the decision to terminate her employment. To this end, Ms Wright secured correspondence from the Council, dated 14 November 2014, which read:
"This letter is to certify that Rockhampton Regional Council did not in any way have any involvement in the employment or termination of employment of Joycelyn Wright."
[28] The correspondence in this respect was signed by Mr Evan Pardon, Chief Executive Officer for the Rockhampton Regional Council.
[29] The correspondence from the Council is irrelevant for the current purposes. The Council exercised its prerogative under the contract with MSS to vary the services it requested and any consequential issues for employees of MSS were unrelated to the Council.
Consultation
[30] Ms Wright contends that she was employed under an enterprise agreement made under the Act. The relevant enterprise agreement to which Ms Wright alluded is the MSS Security Enterprise Agreement (QLD) 2011 – 2014 ("the agreement"). The consultation clause in the agreement provides as follows:
6.11 CONSULTATION
(1) This term applies if:
- (a) the employer has made a definite decision to introduce a major change to production, program, organisation, structure, or technology in relation to its enterprise; and
(b) the change is likely to have a significant effect on employees of the enterprise.
(2) The employer must notify the relevant employees of the decision to introduce the major change.
(3) The relevant employees may appoint a representative for the purposes of the procedures in this term.
- (4) If:
(a) a relevant employee appoints, or relevant employees appoint, a representative for the purposes of consultation; and
(b) the employee or employees advise the employer of the identity of the representative; the employer must recognise the representative.
(5) As soon as practicable after making its decision, the employer must:
- (a) discuss with the relevant employees:
(i) the introduction of the change; and
(ii) the effect the change is likely to have on the employees; and
(iii) measures the employer is taking to avert or mitigate the adverse effect of the change on the employees; and
(b) for the purposes of the discussion - provide, in writing, to the relevant employees:
(i) all relevant information about the change including the nature of the change proposed; and
(ii) information about the expected effects of the change on the employees; and
(iii) any other matters likely to affect the employees.
(6) However, the employer is not required to disclose confidential or commercially sensitive information to the relevant employees.
(7) The employer must give prompt and genuine consideration to matters raised about the major change by the relevant employees.
(8) If a term in the enterprise agreement provides for a major change to production, program, organisation, structure or technology in relation to the enterprise of the employer, the requirements set out in subclauses (2), (3) and (5) are taken not to apply.
(9) In this term, a major change is likely to have a significant effect on employees if it results in:
- (a) the termination of the employment of employees; or
(b) major change to the composition, operation or size of the employer's workforce or to the skills required of employees; or
(c) the elimination or diminution of job opportunities (including opportunities for promotion or tenure); or
(d) the alteration of hours of work; or
(e) the need to retrain employees; or
(f) the need to relocate employees to another workplace; or
(g) the restructuring of jobs.
[31] Ms Wright however does not appear to have been employed under the enterprise agreement. She entered into a contract of employment in April 2013 in a salaried, supervisory role.
[32] That said, notwithstanding what debate might arise in relation to coverage by or the application of a modern award or enterprise agreement, the consultation afforded to Ms Wright was considerable.
[33] Mr Claudio Grasso, a contract manager for the employer gave evidence that he consulted with Ms Wright on 1 August 2014 by telephone regarding operational changes that had arisen. That telephone meeting was scheduled by way of an e-mail sent to Ms Wright the previous day on which he encouraged her to bring a support person along to the discussion. These steps followed the decision of the Council made on or about 30 July 2014.
[34] Upon receipt of this e-mail requesting a meeting, Ms Wright replied and inquired as follows:
“As regards to your meeting requests I would like to know the context of this request so as I can arrange the necessary support person/union representative required to assist me in this matter.
Due to the short notice of your request I may not have anyone available to assist me tomorrow.”
[35] Mr Grasso responded later that evening in the following terms:
- “Hi Joycelyn
As stated the context refers to the latest developments regarding Rockhampton Kerbside duties. I will provide further detail at conference but wish to assure you it is not a disciplinary matter. Let me know how you wish to proceed, alternately give me a call if you seek clarification.” (sic)
[36] Ms Wright subsequently indicated that she was happy to proceed with the meeting.
[37] The employer contends that the gist of that discussion, held at 11 AM on 1 August 2014, was - as set out above - that the Rockhampton Regional Council had conveyed a decision to it to terminate the contract it held with the employer in respect of the kerb side supervisor position.
[38] The content of that meeting was consolidated in correspondence given to Ms Wright on the same day. In that correspondence, MSS recounted the facts in relation to the notification it had received from the Council regarding the restructure and reallocation of the duties relating to Ms Wright’s position. The correspondence also indicated the various redeployment options that were available for purposes of further consultation with Ms Wright.
[39] The consultation with Ms Wright in relation to the circumstances of the restructure continued between 1 August 2014 up until 20 August 2014 (where upon Ms Wright was informed that her position would cease on 4 September 2014).
[40] It appears to me that MSS extended a considerable opportunity for consultation with Ms Wright. This included notifying Ms Wright as the affected employee of the decision of the Council upon the definite decision to make her position redundant having been confirmed on 30 August 2014 (following final discussions between Mr Heard and Mr Grasso).
[41] The discussions about the nature of the change, its consequences for Ms Wright and the steps that MSS could take to mitigate the effects of the change continued over a period of time (1 August 2014 – 20 August 2014). The relevant details had been placed in writing and had been directed to Ms Wright for the purposes of those discussions as they were.
[42] MSS engaged with Ms Wright in relation to her views about the circumstances and in particular her responses to the redeployment opportunities as discussed (which I will refer to below).
[43] It also appears that from 15 August 2014, MSS also interacted with United Voice in relation to the operational change involving Ms Wright. As a consequence of that interaction MSS undertook to continue to assess Ms Wright’s circumstances with a view to exploring any other vacancies in the business that might be more amenable to Ms Wright’s circumstances.
[44] Evidence was also given by Mr Crispian Murphy, the former aviation services manager for MSS in the Queensland/Northern Territory region, that on 25 August 2014 - some nine days prior to the Applicant's employment coming to an end - he e-mailed Ms Wright in respect of a number of additional vacancies that had become available. Mr Murphy gave evidence that he had been advised by the area coordinator in Gladstone that the positions were available in that location.
[45] Mr Murphy directed an e-mail to Ms Wright in relation to these matters. In that e-mail he indicated to Ms Wright that she should let him know as soon as possible if she was interested in the positions and he would forward her expression of interest on to the Human Resources Department.
[46] No response was received from Ms Wright in relation to that e-mail correspondence as directed to her by Mr Murphy. Ms Wright may have presumed reasonably that all the decision making in relation to her future had been made and she was no longer required to monitor emails from her employer, despite seemingly still being an employee of the employer up until 4 September 2014.
[47] Ms Wright was at all times from April 2013 engaged under a contract of employment with MSS in which she was a salaried supervisor. That contract of employment does not include any term in relation to consultation in respect of any major changes that occur in the life of that contract, nor does the contract appear to import any agreement or award. Consequently, MSS was under no obligation arising from the contract of employment to extend any particular consultation opportunities to Ms Wright. The fact that it did so reflects on MSS’s internal policy priorities, and not any statutory prescriptions.
[48] However, if I am wrong in this regard (and there was very little at all put to me on this issue), and Ms Wright’s work was covered by the agreement, MSS has by its word and actions afforded Ms Wright with a measure of consultation that discharges the requirements of the applicable agreement as set out above.
Redeployment
[49] In the event Ms Wright is covered by the agreement I make the following findings.
[50] MSS identified two positions that were available at the time and provided Ms Wright with an opportunity to consider whether either of those positions were attractive to her as an alternative.
[51] The first position - a position as an aviation protection officer - was a part-time position (30 – 35 hours per week) with an hourly rate of $19.87.
[52] The second position was a full-time position (38 hours per week) with an hourly rate of $19.87 plus $52.84 per week in over award allowances. The allowance resulted from the position being a supervisory position. This position was also located at the Proserpine airport.
[53] The correspondence of 1 August 2014 provided Ms Wright with an opportunity to nominate a preferred outcome by 6 August 2014.
[54] Ms Wright replied by e-mail to the employer on 7 August 2014 and indicated that she did not consider either of the positions as acceptable. At that time Ms Wright stated in correspondence to Mr Murphy that:
"I am not in a position to relocate to Proserpine so therefore I had no choice but to decline this offer."
[55] Ms Wright further corresponded in the following terms to Mr Murphy:
- "Crispian
As per phone conversation on the afternoon of the 3 August 2014 this position offered is declined.
Joy”
[56] Ms Wright declined the two positions for reasons that were supplied, were five hours from Rockhampton by car from her residence and the position offered was at a "significantly lower pay rate". Ms Wright claimed that she could not leave her family and in any event there were no relocation allowances available to support relocation.”
[57] On 20 August 2014, the employer corresponded once again with Ms Wright and indicated that apart from the two positions at Proserpine airport there were no other vacancies to which she could be redeployed. The employer highlighted a term of her contract of employment which indicated that relocation may be required from time to time on 30 days notice.
[58] I note that Ms Wright’s contract of employment provided as follows, under the heading "location":
"You are employed to work at a location as required in requested by the company. The location of this role may be changed by the company to anywhere within Queensland by providing you with 30 days notice. Such changes of location will not incur payment of expenses or additional allowances and will not be deemed to be a breach of your contract of employment."
[59] Ms Wright's employer in this same correspondence referred to above of 1 August 2014 stated that:
“[S]hould your position of not being able to accept either of the roles offered to you, MSS security in accordance with the written confirmation provided to you on the 01 August 2014 will be unable to provide you with any further work in Rockhampton effective Monday 4 September 2014."
[60] The employer provided Ms Wright with a further opportunity to consider his circumstances and to discuss any matters with it in the interim period.
[61] As indicated earlier, Mr Murphy directed further correspondence to Ms Wright on 25 August 2014 - during the period in which Ms Wright was on notice - in which he sought to inform her that a number of new positions had become available in the Gladstone area, and for which accommodation was available.
[62] Ms Wright did not respond to this e-mail correspondence. She claims to have been unaware of the e-mails at the time.
[63] The evidence of MSS in relation to the redeployment opportunities extended to Ms Wright was authentic and represented the factual circumstances at the time. MSS demonstrated that it continued to seek redeployment opportunities for Ms Wright - and endeavour to bring these opportunities to her attention - even after such time as it had indicated to her that her employment had been terminated on notice. The correspondence from MSS to Ms Wright indicates that it kept open the opportunity for discussion about redeployment - in other regions and states - up until the date of the termination - 4 September 2014.
[64] By so doing, MSS discharged any statutory obligations it may have had directly or indirectly or impliedly under section 389(2) of the Act.
[65] Ms Wright did claim that there were casuals who performed duties and others who should have been displaced and terminated so as to allow her to be re-deployed to perform lower classified duties. But Mr Grasso contended that the Council wished to have the roster performed by the incumbents, and was not moved on this point on cross examination.
[66] I do not discern in the requirements of s.389(2) of the Act that an obligation to terminate any casual employee to allow an employee who is made redundant to assume the position performed by that casual employee. It would be reasonable in the circumstances for MSS not to consider the casual positions as positions to which an employee could be redeployed - the positions here were already filled by incumbent employees, and the positions are fundamentally different modes of employment, in any event.
[67] MSS also claimed that it has not had any need to employ any additional employees since June 2014, and where an employee - in one instance - had resigned their employment, another employee’s hours had been increased to accommodate the circumstances (and to avoid increasing the costs to the contract of employing an additional employee). Changes to Qantas flight schedules, I add, have also decreased hours in screening requirements and the opportunities for new positions to be created.
Conclusion
[68] MSS has made out its case that Ms Wright's employment came to an end for reasons of a genuine redundancy within the meaning of s.389 of the Act. Whether or not Ms Wright was covered by an agreement, there was an authentic, genuine operational reason for Ms Wright's position being made redundant; the employer afforded Ms Wright an extensive opportunity for consultation (such that it discharged any obligation under the agreement); and demonstrated endeavours were made to mitigate the effects of the decision to make Ms Wright's position redundant (by offering Ms Wright a number of alternative positions throughout the period leading up to her termination on for September 2014).
[69] As a consequence of these findings, Ms Wright is not an employee who is protected from unfair dismissal and she is not able to proceed with the application as made under s.394 of the Act. Ms Wright’s application under s.394 of the Act is therefore dismissed.
SENIOR DEPUTY PRESIDENT
Appearances:
Ms J Wright for the Applicant
Ms M Stinson for the Respondent
Hearing details:
2015
11 May
Brisbane
Printed by authority of the Commonwealth Government Printer
<Price code C, PR567273>
1
1
0