Mrs Michelle Margaret Jackson v Carpenter Products Pty Ltd
[2010] FWA 7429
•24 SEPTEMBER 2010
[2010] FWA 7429 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mrs Michelle Margaret Jackson
v
Carpenter Products Pty Ltd
(U2010/8832)
SENIOR DEPUTY PRESIDENT RICHARDS | BRISBANE, 24 SEPTEMBER 2010 |
Summary: costs application – s.396 – directions for arbitration - whether “genuine redundancy” – absence of evidence re s.389(2) and redeployment etc.- controlling mind of the company
[1] This is an application for costs under s.611 of the Fair Work Act 2009 (“the Act”) by the Respondent Carpenter Products Pty Ltd to an application made under s.394 of the Act by Mrs Michelle Jackson on 13 May 2010, seeking an unfair dismiss remedy.
[2] The application for costs was heard in Brisbane on 22 September 2010.
[3] The substantive application (made under s.394 of the Act) was subject to a conciliation conference (on 7 June 2010), which did not resolve the matters in contest. It was evident from the materials on file that the matter concerned a claim of genuine redundancy (which if upheld would make the dismissal not unfair).The matter was subsequently set down for arbitration by hearing\conference in Cairns on 25 and 26 August 2010 by the Melbourne Unfair Dismissal Team on 16 June 2010.
[4] The Applicant withdrew her application by a Notice of Discontinuance on or about 4 August 2010, which was some two days after the due date her written materials were due under the Directions timetable. The Respondent contends that it was put to various expenses incurred in preparation for the arbitration proceedings and sought costs accordingly.
[5] The costs application was made on 16 August 2010 and allocated to me on 20 August 2010.
[6] Section 611 of the Act reads relevantly as follows:
611 Costs
(1) A person must bear the person’s own costs in relation to a matter before FWA.
(2) However, FWA may order a person (the first person) to bear some or all ofthe costs of another person in relation to an application to FWA if:
(a) FWA is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or
(b) FWA is satisfied that it should have been reasonably apparent to the first person that the first person’s application, or the first person’s response to the application, had no reasonable prospect of success.
[7] The Respondent who has made the costs application now before me considers that the application under s.394 of the Act should not have been made because the application had no reasonable prospects of success (under s.611(2)(b) of the Act). The Respondent does not agitate either element of s.611(2)(a) of the Act.
[8] The grounds for the application for costs are as follows:
1. The Applicant’s dismissal was for a case of genuine redundancy;
2. The Applicant was provided with 24 days written notice of the termination;
3. The Applicant was paid her redundancy entitlement;
4. The Applicant was aware her position would not be replaced by anyone else following her termination;
5. The Applicant was aware the cattle properties at which her role was performed were listed for sale (though they have not been sold to date and now may be leased to a third party);
6. The Applicant’s husband had been informed in November 2009 by the Respondent's Business Development Manager that the properties were to be sold;
7. The Applicant had lodged materials in the Federal Magistrates Court seeking that the employer’s assets be frozen, which further expressed her appreciation of the circumstances she faced in relation to her employer’s operations;
8. The Applicant’s partial role in assisting the Respondent in marketing and distributing copra meal had ceased and no other person was required to perform such duties;
9. It was unreasonable for the Applicant to hold the belief that she was terminated because her husband had recently resigned from the Respondent’s employment; and
10. It was reasonable to assume her husband, who resigned his employment owing to a dispute at an earlier date, as a Director of the Company, and an element of its controlling mind, would have made the business circumstances clear to the Applicant (given point 6 above).
[9] Generally, the Respondent contended that because on the Applicant's own version of the facts, it was reasonably apprehended that the dismissal was for reason of a genuine redundancy, it may properly be concluded that the application was made with no reasonable prospects of success. 1
[10] The Applicant contends that she had no knowledge of the kind asserted by the Respondent in points 4 and 8 above in relation to there being no other position offered to any other person following the termination of her employment, and that the applications (for costs) brings no evidence to support such claims.
[11] In respect of point 2 above, the Applicant claims that the Respondent did not afford the Applicant the relevant statutory notice period (noting the Applicant was over 45 years of age) and that this on its own may have rendered or at least given weight to a finding that the termination of the Applicant’s employment was harsh, unjust or unreasonable.
[12] The Respondent contends that this is a marginal issue, in effect, because the residual amounted to some 4 days pay only.
[13] Notwithstanding this dispute between the parties, in any event, the mere fact of notice having been provided or paid in lieu thereof, is not an indicator on its own of a genuine redundancy having been given effect under the Act.
[14] The Applicant herself provided an Affidavit in which she deposed that she had not been informed that her employment would be terminated upon the sale of the cattle stations. 2
[15] As the Respondent was a large employer she had assumed that she would have continued to be employed after the sale of the two discrete properties or could be employed after their sale by the new owners. The Applicant was only informed at a later date (6 April 2010) that her employment would be terminated and that she would have to vacate her residential premises as a consequence.
[16] To the best of the Applicant’s knowledge the cattle stations have not been sold to this date (which has been confirmed by the Respondent in its submissions as summarised above), and she questions why she was not continued in employment.
[17] I note that in the email correspondence of 6 April 2010, the Respondent stated the Applicant’s employment would cease on a particular date but that the feedstock marketing function would continue. An inference might reasonably have been drawn by the Applicant that her clerical and administrative services might still have been required in such circumstances. This is particular so given that she appears to have had some involvement in the Respondent’s copra meal business.
[18] The Applicant’s husband resigned his employment from the Respondent on 26 March 2010 owing to a dispute, it would appear, concerning the “unilateral reduction in his pay by the Respondent”.
[19] The Applicant believed that her dismissal was related to her husband’s resignation, and not for reason of her position having been made (genuinely) redundant.
CONSIDERATION
[20] At the outset I note that the Respondent seeks costs in relation to the preparation for arbitration. These are not costs, in a strict sense, that I think can reasonably be laid at the feet of the Applicant.
[21] It appears to me that the matter should have been dealt with as a jurisdictional-type question before the merits of the application were considered by way of arbitration. This is because of the operation of s.396(d) of the Act, which reads:
396 Initial matters to be considered before merits
FWA must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
[...]
(d) whether the dismissal was a case of genuine redundancy.
[22] The matter was seemingly listed by the administrative arm of Fair Work Australia as a matter of automaticity upon the unsuccessful conciliation of the application.
[23] Notwithstanding, the Respondent does not appear from the file to have agitated (after the conciliation conference) the question of there being a claim that the Applicant could not be found to be unfairly dismissed for reason of her having been terminated for “genuine redundancy”, though the issue was long in evidence on the materials on file.
[24] It is not immediately evident whether the costs implications would have been the same, or whether the Applicant would have conducted herself in a different manner if the application had been listed for hearing in relation to whether the dismissal had been for reason of a genuine redundancy. The factual matrix for both claims overlap to some measure.
[25] These observations aside, the Act sets out a number of preconditions for a finding that a dismissal was unfair:
385 What is an unfair dismissal
A person has been unfairly dismissed if FWA 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.
[26] A dismissal cannot be unfair if the Applicant, amongst other things, was dismissed for reason of a genuine redundancy for the purposes of s.385(d) of the Act.
[27] The Act provides a meaning of a genuine redundancy in the following terms:
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.
[28] At the outset, there is not before me any evidence as to how the Applicant was intended to reach a readily apparent conclusion that her case had no reasonable prospect of success. The file does not disclose such information having been provided to the Applicant prior to her making her application under s.394 of the Act as to the factual circumstances that created a nexus between the decision to sell two cattle properties and her own employment situation.
[29] The Applicant contends that she could have continued to perform duties to the point of any sale or else have been redeployed or continued in the service of the future owner.
[30] When the Applicant was informed that there was such an apparent nexus (by email on 6 April 2010) between her employment and the sale of the properties, the email nonetheless (as I suggested above) could have given rise to an inference that there might have been other work available subsequently in relation to the marketing of the copra meal feedstock.
[31] Further, there is no evidence that the Respondent had ever considered or communicated to the Applicant that it had considered the circumstances under s.389(2) of the Act in relation to redeployment, specifically. The costs application does not (nor does the file itself) reveal this evidence, let alone when it was disclosed to the Applicant. Indeed, nothing was put to me as to what the Applicant might have reasonably understood to be the scope for her to be redeployed. I must conclude on what is before me that the Applicant was never informed, or was not otherwise reasonably aware, at the time she made her application under s.394 of the Act, that the requirements of s.389(2) of the Act were given effect.
[32] Consequently, there is no ground for me to conclude, or for the Applicant to have ever reasonably concluded, that even if there had been an operational change of the kind asserted by the Applicant that it resulted in a “genuine redundancy” as defined in the Act, such that the Applicant was not able to make the claim for relief. This is because there is no evidence that the Respondent ever satisfied the requirement of s.389(2) of the Act.
[33] Presumably, it might have been argued that the Applicant's position (or a large proportion of the duties associated with the position) were dependent upon the two cattle stations remaining in the Respondent's property portfolio. But it was not so argued, or evidenced such that I could reasonably infer that such knowledge was reasonably apprehended by the Applicant at the time she made her application under s.394 of the Act.
[34] Equally, there is no evidence as to why the Applicant's employment was terminated when it was, which is well prior to sale of the properties (which appear not to have been sold to this date and on the Respondent submissions, may be leased to a third party). Again, there might be reasons for this, but they were not evidenced in the application for costs or otherwise, and there is no evidence that the Applicant was ever informed at the time she made her application, of why the termination of her employment was necessitated at the time that it was.
[35] There are other matters that I have averted to in the discussion of the parties’ submissions above. One of these concerns whether the provision of the notice period was evidence of a genuine redundancy: on its own it is not.
[36] Another matter was that the Applicant might have been appraised of the Respondent’s business circumstances and presumably why those circumstances necessitated the termination of her employment, along with why she could not be redeployed within the company structure, for reason her husband, a former Director, was part of the controlling mind of the company and he must reasonably have informed her.
[37] This might be so in fact. But I have no evidence that it was, nor does any of the material before me provide a basis for to make a reasonable inference that all this information was conveyed by her husband prior to the Applicant making her application under s.394 of the Act. I have not been assisted by either party in respect of these matters.
[38] But even if true, and it was demonstrated that the Applicant was so advised by her husband, the Applicant would still have remained uncertain as to whether the requirements of s.389(2) of the Act had been satisfied.
[39] I cannot reasonably infer from the Applicant's conduct in seeking a Mareva order on the assets of the Respondent in proceedings in the Court that the Applicant was aware at the time she made her application that her dismissal was because of a genuine redundancy. Arguably, the Applicant has done no more than seek to ensure she has a call on the Respondent's cash reserves should underpayment be proven. I cannot take this much further without more.
[40] In such a circumstantial matrix as I have set out above, it can be understood, to some measure at least, why the Applicant might have held a reasonable belief that the difficulties into which her husband had fallen around the same time with the Respondent provided a more cogent explanation for her dismissal than the Respondent's claim that she had been made redundant.
[41] Of course, this is a view I have reached on the basis that many of the claims made by the Respondent about what was within the Applicant's knowledge have not been made out as a matter of evidence. Most of what is before me is submission.
CONCLUSION
[42] Given the above discussion, the application for costs cannot be sustained on the basis that it should have been reasonably apparent to her that her application under s.394 of the Act had no reasonable prospect of success for reason her dismissal was a genuine redundancy.
[43] The application under s.611 of the Act seeking orders under s.402 of the Act is dismissed, therefore.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr C Mossman of BCI Lawyers for the Applicant
Mr J Seccull of Preston Law for the Respondent
Hearing details:
2010.
Brisbane.
22 September.
1 See Justice Wilcox’s judgment in Re: Kannon v Australian Postal and Telecommunications Union (1992) 43 IR 157, which deals with “reasonable cause” rather than “no prospects of success”.
2 Affidavit of Michelle Jackson afforded on 9 September 2010 at Exhibit MJ1
Printed by authority of the Commonwealth Government Printer
<Price code {C}, PR502010>
0