Mrs Sandra Camilleri v Sunbury Bowling Club
[2010] FWA 5146
•13 JULY 2010
[2010] FWA 5146 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mrs Sandra Camilleri
v
Sunbury Bowling Club
(U2010/561)
COMMISSIONER ROE | MELBOURNE, 13 JULY 2010 |
Termination of employment- genuine redundancy.
[1] The matter arises from an application filed on 7 April 2010 under s 394 of the Fair Work Act 2009 (the Act) by Ms Sandra Camilleri (the Applicant) for relief in respect to the termination of her employment from Sunbury Bowling Club (the Respondent).
[2] Following an unsuccessful conciliation conference the matter proceeded to arbitration. The parties elected to proceed to a hearing.
[3] Directions were issued by Fair Work Australia and the matter was heard on 9 July 2010.
[4] At the hearing the Applicant was represented by Mr Lennon and Mr Considine from the Liquor, Hospitality and Miscellaneous Union (the LHMU) and the Respondent was represented by Mr Cross from Clubs Victoria.
[5] The Applicant was dismissed at the initiative of the employer on either 25 March 2010 or 31 March 2010. The Applicant had been employed by the Respondent for more than 10 years. The reason given for the dismissal was that the Applicant’s position was redundant.
[6] Evidence for the Applicant was given by:
- the Applicant; and
- Mr Desmond O’Sullivan, who is employed as a level 4 supervisor for the Respondent which is the same job as the Applicant had been employed to do prior to the dismissal.
[7] Evidence for the Respondent was given by:
- Mr Mark Dalmau, who is the General Manager for the Respondent;
- Ms Sue Day, who had been a short term casual employee for the Respondent prior to being appointed to a newly created position of level 6 Venue Supervisor for the Respondent from 21 February 2010; and
- Mr Peter Hansen, who was appointed to a newly created Assistant Manager position for the Respondent from late January 2010.
[8] The threshold issue is whether or not the dismissal was a genuine redundancy. Section 385(d) of the Act provides that if I am satisfied that the dismissal is a genuine redundancy then it cannot be an unfair dismissal. Genuine redundancy is defined as follows by the Act:
389 Meaning of genuine redundancy
(1) A persons 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.
[9] Mr Dalmau, the General Manager, gave evidence that he determined that some restructuring was necessary in order to overcome a problem he had identified as follows:
“…the Club lacked employees with sufficient skills to ensure that all compliance aspects associated with gaming could be performed. As a result of this deficiency the assistant manager (‘Anne Rogan’) and I had to perform these tasks. This was adversely affecting our ability to drive other aspects of the business.” 1
[10] Mr Dalmau also gave evidence that the Respondent was in some financial difficulties and made a loss in 2008/2009 financial year and this loss has worsened in the 2009/2010 financial year.
[11] He decided with the approval of the Board to advertise two new positions namely an additional Assistant Manager and also an additional supervisor position. This was additional to the three existing supervisor positions employed by the Respondent at that time, one of which was occupied by the Applicant.
[12] The first the Applicant was aware of the plan to create an additional supervisor position was when she saw an advertisement on the Clubs Victoria internet site. The advertisement was placed on 2 December 2009 for the position of Assistant Manager and also for a position as “Supervisor Sunbury Bowling Club”. 2 This later position was advertised as follows:
“The Sunbury Bowling Club is also seeking the services of an experienced gaming, food and beverage supervisor. You must be experienced in gaming and bar operations with knowledge of Gold Coin/System One and hold a current Industry Gaming Licence and industry accreditations.
An enthusiastic, friendly manner is essential with the ability to liaise with club members and guests. This position will be paid Supervisor level of the Licensed Clubs Award 1988” 3
[13] The Applicant and others were concerned about the advertisement and in response Mr Dalmau issued a memo to all staff on 17 December 2009 as follows:
“As part of the review of all positions with the changeover to the new award and also with the financial performance of the club over the past period of time, certain changes are required to be made.
Structurally, I am looking at proceeding with two assistant Managers. Adding a second person to the mix to assist Anne with driving the business and gaining better results for the club overall.
I have advertised the role externally and it is now available for internal applicants to apply and be reviewed before any final decision is made.
In doing this, these roles will be hands on roles ensuring that all staff get the support, training and development you need. This has been sadly lacking and the feedback I received from the recent staff meetings has confirmed this even more.
The tasks and responsibilities of our current supervisors are consistent with the grading that past management judged them to be. In going forward, the supervisor will need to be able to do more that what is currently being done and as such a revised job description of that role has also been prepared. This roll has also been advertised externally but is also available to all staff to apply if you so desire.
I thank you for your support in trying to further the development and trade of the business so as to make this club a stronger, better club for its members and in turn then the staff.
If anyone is interested in obtaining job descriptions for either of these roles, please do not hesitate to ask me. Internal applications will close on Tuesday 29th December at 5pm for both roles.” 4
[14] Following a query from the Applicant Mr Dalmau provided her with a copy of a Position Description for the new supervisor role. 5
[15] None of the three existing supervisors, including the Applicant, applied for the new supervisor position. Ms Day was the successful applicant for the position and took up that position from 21 February 2010. Nothing of significance changed in terms of the duties of the existing supervisors in the month following Ms Day’s appointment. Mr O’Sullivan and Ms Day in evidence confirmed that the changed roles did not take effect until at least a month after the redundancy.
[16] On 25 March 2010 the Applicant was called to Mr Dalmau’s office and was advised in the presence of the new Assistant Manager, Mr Hansen, that she was to be made redundant as the number of supervisor positions was to be reduced by one. The Applicant was advised that she had been selected as the person to be made redundant as she was the most junior of the three level 4 supervisors. Mr Dalmau had the notice of redundancy and calculations of her entitlements prepared for the meeting. The Applicant was advised of her entitlements during the meeting. The Respondent agreed to defer the meeting at the request of the Applicant and it was resumed on 31 March 2010 with the LHMU representative present.
[17] At the meeting on 31 March 2010 the LHMU explored with the Respondent four issues:
- The concern of the Applicant that the position to which Ms Day had been appointed was, except for a few relatively minor matters, the same as the position held by the Applicant. By implication the solution maybe for Ms Day, as the supervisor with the least service, to be made redundant and for the Applicant to be retrained in any duties not currently performed. Mr Dalmau argued that the difference between the two jobs was in fact significant.
- The concern of the Applicant that she could be redeployed to another job with the Respondent including the possibility of reducing casual hours to create a job for the Applicant. Mr Dalmau argued that there was no opportunity for redeployment and that casual hours were likely to reduce in any case.
- The concern of the Applicant that another supervisor, Mr Desmond O’Sullivan, was close to retirement and perhaps the Applicant could be retained until that time. Mr Dalmau argued that the retirement date for Mr O’Sullivan was uncertain.
- The concern of the Applicant that there could be some commitment to re-engage the Applicant in the future in the event that Mr O’Sullivan did retire. Mr Dalmau rejected this proposal.
[18] Mr Dalmau submitted that he told the Applicant in December 2009 that the new supervisor job was at a higher level than the existing job of the Applicant and that if the Applicant was interested in the new job she should apply. The Applicant and Mr O’Sullivan submitted that they were never told that the new supervisor’s job was a significantly different job from their current job and hence they did not see any need to apply. The Applicant and Mr O’Sullivan submitted that Mr Dalmau did nothing to encourage them to apply for the job except put out the notice of 17 December 2009 which made it clear that existing staff could apply.
[19] The memo to all staff of 17 December 2009 (set out above) seems me to be consistent with the Applicant’s version of events. The first four paragraphs of the memo are clearly about the creation of the additional Assistant Manager position. The fourth paragraph makes it clear that the Assistant managers will be “…hands on roles ensuring that all staff get the support, training and development you need”. The fifth paragraph is clearly an explanation concerning the advertising of the additional supervisor position. In my view this paragraph clearly says that the current supervisors have been classified consistent with what was required in the past but that in the future the supervisor role will need to be expanded and a revised job description has been prepared. The implication is that this expanded role may be at a higher level. The memo then goes on to advise that the job has been advertised externally but that any internal staff can also apply.
[20] There is no reason from this memo for the existing supervisors to think anything more than that
- an extra supervisor job is being advertised; and
- that the job description for that job is expanded somewhat and at a higher level; and
- that they might also be expected to similarly change their role in the future; and
- that they can expect to get the support, training and development that they might need, should this occur.
[21] This is what the Applicant thought it meant. I am not satisfied that the Respondent took any effective steps to change the Applicant’s understanding.
[22] Most importantly there is no suggestion that the Applicant or Mr O’Sullivan were warned that there could be a possible reduction in the number of level 4 supervisor jobs following the appointment of the new supervisor. If they had known this then they would, in my view, have certainly taken steps to apply for the position or to challenge the creation of the position. However, Mr Dalmau conceded that when he established the two new positions of Assistant Manager and Venue Supervisor, the Respondent was in financial difficulty and that other cost reductions were going to be required. Mr Dalmau said that he thought that a reduction in the number of the existing supervisors was a likely outcome.
[23] However, Mr Dalmau submitted that he tried to manage without reducing the existing supervisor positions between 21 February 2010 when Ms Day commenced and 23 March 2010 when Mr Dalmau submitted it became clear that this was not tenable and therefore he decided that a redundancy was required. I find this explanation quite implausible. The period from 21 February to 23 March 2010 is not long enough to be consistent with genuinely trying to manage with the existing positions. Furthermore the actual changes in work organisation and duties consequent upon the restructure did not actually get implemented until at least one month after the Applicant was made redundant so it could not have been an assessment of the actual experience of the staffing levels required under the new structure that could have led to the decision. The evidence of Ms Day and Mr O’Sullivan was that the changes, including the additional responsibilities for Ms Day and the changed responsibilities for the remaining existing supervisors, were largely implemented at least one month after the redundancy of the Applicant.
[24] I am satisfied that when the Respondent decided to create the two new positions in December 2009 the Respondent knew that if the new supervisor position was not filled by one of the incumbent supervisors that at least one of the existing supervisors would be made redundant as a consequence.
[25] I am therefore satisfied that the Respondent made a definite decision in December 2009 to introduce major changes that were likely to have a significant effect on the job opportunities of the Applicant and that the Respondent failed at that time to properly discuss the implications of the change and measures to mitigate any potential adverse effects of the change with the Applicant and or her union representative. Furthermore, I am satisfied that there is a real possibility that the redundancy might have been avoided if there had been such discussions as they might have led to retraining of the Applicant and restructuring to meet the needs of the employer without the need for a redundancy.
[26] The consultation I have described is a mandatory requirement under the relevant Award and also under any enterprise agreement entered into under the provisions of the Act (Section 205). If the Applicant had been covered by the Award or an enterprise agreement under the Act there would have been no genuine redundancy, in this case because the required consultation would not have taken place as required by Section 389(1)(b). However, the Applicant is covered by an Australian Workplace Agreement (AWA) signed by the parties in January 2007. I was satisfied by the evidence that this AWA was still applicable to the Applicant at the time of the redundancy. There is nothing in the AWA 6 which requires the employer to consult about workplace change or redundancy.
[27] The Respondent sought to show that the new supervisor position to which Ms Day was appointed was very different to the position held by the Applicant. The LHMU sought to show that the positions were not very different. As stated earlier, I am satisfied that the Applicant for good reasons certainly did not think that they were very different at the time when she became aware of the new job being advertised. I am also satisfied that the differences in the positions is not so great that the possibility of retraining and redeployment could not have been considered at the time the management decided to proceed with the restructuring in December 2009.
[28] The Applicant and Mr O’Sullivan were cross examined in great detail about a number of the functions listed in the position description for the new supervisor role 7 and this gave me a clear picture of which functions were traditionally performed by the supervisors and which were not. The evidence confirmed that the Applicant did not believe the job was very different and hence did raise great concerns for her at the time it was advertised. The Respondent submitted that because the position description8 showed: “Supervisor: Assistant Managers/General Manager and Lateral: Nil and Subordinates: Bar/Gaming/Food/Reception staff” it should have been obvious it was a different job. However, I don’t accept this given that the existing supervisors reported directly to the Assistant Managers/General Managers and they did not report laterally to other supervisors and they were responsible in the evenings for the workers for areas outside of gaming.
[29] However, leaving aside the question of how the Applicant perceived the new position description, the evidence established that the following requirements of the new position were not traditionally required of the existing supervisors:
- Gold Coin operations
- Ensure staff are trained in the Anti Money Laundering and Counter Terrorism legislation.
[30] The existing supervisors have a level of responsibility for work in respect to promotions and OH&S monitoring and work across the bar, bistro and gaming areas particularly in the evenings however, there is some legitimacy in the suggestion that the new position description suggests that the new supervisor role might take more extensive responsibility in these areas. This might include some functions previously performed by more senior management. However, there is one and only one significant difference between the positions which satisfies me that it is a different position and that is that it is classified at level 6 under the Award structure and the existing supervisors are classified at level 4 under the Award structure. The level 6 classification allows much greater scope for management to expect the position to take on more extensive responsibilities. Since the redundancy has occurred the evidence of Mr O’Sullivan and Ms Day is that the level 6 supervisor job and the level 4 supervisor job have become increasingly different in this respect.
[31] A Full Bench of Fair Work Australia has recently reaffirmed the principles to be followed in assessing whether or not the employer “…no longer requires the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise.” 9 There are many decisions which establish that this test can be met when job functions are retained but are redistributed and restructured. The objective fact in this case is that prior to the restructure there were three supervisor jobs at level 4 and after the restructure there were only two supervisor jobs at level 4 and there was one supervisor job at level 6. Hence there is one level 4 supervisor job which is redundant. I think it is inescapable that the requirements of Section 389(1)(a) are met.
[32] The other requirement for a genuine redundancy is that the employer has complied with consultation obligations under a Modern Award or Enterprise Agreement. 10 This requirement will generally prevent arrangements designed to dismiss particular employees under the guise of restructuring. However, in this particular case I have already found that there is no modern award or enterprise agreement which is applicable and hence Section 389(1)(b) is satisfied.
[33] Therefore there can be no access to unfair dismissal remedy in this case unless Section 389(2) applies and that is unless “…it would have been reasonable in all of the circumstances for the person to be redeployed” within the employer’s enterprise. I was not made aware of any associated entity of the employer which could be considered for redeployment.
[34] The LHMU argued that there were two options for redeployment. The first is that the Applicant should have had the opportunity to move to the job to which Ms Day had been appointed. The second is that casual hours should have been reduced to create a suitable position for the Applicant at least until such time as another position became available.
[35] It is true that had the Applicant been encouraged to take on the role which was allocated to Ms Day she may well have been able to do it. However, the Level 6 job had been filled by Ms Day more than a month prior to the redundancy occurring. Hence the job is not available for the Applicant to be redeployed into it. The legislative mechanism to deal with this situation is the consultation requirement of Section 389(1)(b) but as found earlier the existence of an AWA means that it is not applicable in the circumstances of this case. The Explanatory Memorandum for the Fair Work Bill 2008 [Explanatory Memorandum] at para 1550 confirms that Section 389(1)(b) “…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”. Furthermore at Paragraph 1553 the Explanatory Memorandum confirms that “Whether a dismissal is a genuine redundancy does not go to the process for selecting individual employees for redundancy.” unless the reason for selection was for a prohibited reason covered by the General Protections in Part 3-1 of the Act. This is consistent with the decisions about genuine redundancy under earlier legislation and the decision in Carter v Village Cinemas Australia Pty Ltd. 11
[36] The LHMU argued and gave evidence that there were some 60 to 80 hours of casual labour utilised each week around that time of the redundancy and hence redeployment by reducing casual hours until another position became available was a realistic option for redeployment. The Respondent argued and gave evidence through Mr Dalmau and Ms Day that the number of casual hours had been reducing, that the total weekly casual hours was about 40 in the gaming room plus additional irregular shifts in the dining area and that the hours were irregularly distributed across weeks, days and areas of the business such that a full time job could not be created. Mr Hansen gave evidence that three or four casuals were employed in gaming for approximately 20 hours per week each. Mr Dalmau gave evidence of a decline in the gaming business. The witnesses for the Respondent gave evidence that not all annual leave was replaced using casuals but that when annual leave was taken during quieter times there was no replacement staff. Although there was some difference between the management witnesses about the total amount of casual labour being utilised I cannot be satisfied that there were adequate hours available distributed across a normal week to be able to provide a realistic redeployment option for the Applicant.
[37] I therefore find that the requirements of Section 389 have been met and the redundancy of the Applicant was a genuine redundancy and therefore the application for unfair dismissal remedy must be dismissed. I dismiss the application.
COMMISSIONER
Appearances:
S. Lennon and G. Considine appearing for the Applicant.
J. Cross appearing for the Respondent.
Hearing details:
2010:
Melbourne
July 9.
1 Exhibit SB4 paragraph 7 - Statement of Mark Dalmau.
2 Exhibit LHMU6.
3 Exhibit LHMU6.
4 Exhibit LHMU2.
5 Exhibit LHMU1.
6 Exhibit MFI1 and Exhibit SB4 - Attachment A.
7 Exhibit LHMU1.
8 Exhibit LHMU1
9 Ulan Coal Mines Limited v Henry Jon Howarth and others [PR 996697]
10 Section 389 (1)(b) of the Act.
11 (2007) 158 IR 137 at 144 and 145).
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