Mrs Sunita Chand v Sypharma Pty Ltd
[2010] FWA 3498
•3 MAY 2010
[2010] FWA 3498 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mrs Sunita Chand
v
Sypharma Pty Ltd
(U2010/5106)
COMMISSIONER ROE | MELBOURNE, 3 MAY 2010 |
Termination of employment – genuine redundancy.
[1] This matter arises from an application filed on 4 January 2010 under s 394 of the Fair Work Act 2009 (the Act) by Ms Sunita Chand (the Applicant) for relief in respect to the termination of her employment from Sypharma Pty Ltd (the Respondent).
[2] It was not contested that the Applicant had completed the minimum employment period and was covered by an enterprise agreement and so was protected from unfair dismissal within the meaning of Section 382 of the Act. The Respondent stated in the letter of dismissal dated 17 December 2009 that the Applicant was being made redundant effective from 18 December 2009. They outlined the reason for the redundancy as falling sales and that the manufacturing forecast for 2010 continues this trend. They stated that the Applicant was aware of the falling sales from previous discussions, and that there was no position for the Applicant in the “manufacturing of concentrates and HF1”. They also stated that they were unable to find an alternative position for the respondent in the company and advised that the Applicant would receive payment for notice and redundancy and outstanding leave entitlements in accordance with the EBA. The Respondent therefore claimed that there had been a genuine redundancy and that pursuant to Section 385(d) of the Act there was no remedy for unfair dismissal available to the Applicant. It is not contested that the Applicant found new employment in March 2010 which is continuing.
[3] The matter went to an unsuccessful conciliation conference on 4 February 2010. On 9 February directions were issued to the Applicant and the Respondent and advice was given that the hearing would be held on 3 May 2010 for “Jurisdiction (Genuine Redundancy) and Arbitration Conference/Hearing”. There were initially some issues concerning the payment of entitlements to the respondent consistent with the collective agreement and the taxation of those entitlements, however, the Respondent rectified those issues.
[4] The Applicant failed to provide outline of submissions and any witness statements by Monday 15 March 2010 as required. Senior Deputy President Acton called the matter on for hearing on 18 March 2010. At that hearing the Senior Deputy President issued new orders which gave the Applicant until 29 March 2010 to provide her materials in support of her case and gave the Respondent until 23 April 2010 to provide their materials and reaffirmed the hearing date of 3 May 2010. In that hearing the Senior Deputy President went to some lengths to ensure that the Applicant was aware of her obligations and the timetable which was now set. At the conclusion of that hearing the following exchange occurred:
“SENIOR DEPUTY PRESIDENT: Now we're all clear that this matter is going to hearing on 3 May 2010.
MRS CHAND: Yes.
SENIOR DEPUTY PRESIDENT: And material is to be filed.
MRS CHAND: Material to be filed for my (indistinct) before 29 March, that's right?
SENIOR DEPUTY PRESIDENT: Yes.” 1
[5] The Applicant provided an outline of her submissions on 28 March 2010.
[6] The Respondent through the Australian Industry Group provided an outline of submissions together with a witness statement from Mr John Hearn General Manager of the Respondent and a witness statement from Mr Ganeshan Varnakulasinghamn the Production Manager of the Respondent on 23 April 2010. Attached to the witness statement of Mr John Hearn is material detailing production levels and forecast production levels and the termination letter and statement of employment provided to the Applicant. At the hearing on 3 May the witness statement of Mr John Hearn and attachments were admitted as sworn evidence.
[7] On 28 April the Applicant emailed Fair Work Australia as follows:
“I Sunita Chand hereby kindly request that I need more time to go through my submission which I received by mail on Tuesday after 5 pm. I have been working all week 8am to 5pm on my new job, as I need more time to discuss with my legal people before the hearing. I need 6 to 8 weeks to prepare my case, so I need the case to reschedule in July.
If the case is not rescheduled to July, I will not be able to attend the case on Monday (3/5/10). I have just started a new job a month ago and to take leave from work will not be a very good idea.”
[8] On 29 April my Associate responded to the Applicant as follows:
“I refer to the telephone conversation between yourself and the Commissioner of 29 April 2010. The Commissioner also notes the email you sent on 28 April.
You asked for more time as you had not received the employer submission until Tuesday 27 April. As you are aware you were late providing your outline of submission which was why Senior Deputy President Acton granted you more time and in fairness provided the employer with more time. The time period between Tuesday 27 April and Monday 3 May is regarded as not unreasonable in the circumstances by Fair Work Australia.
You requested an adjournment until July due to the shortness of time to consider the employer submission and due to the fact that you started a job recently and it will be difficult to get time off work. The Commissioner was concerned about this and so rang you to discuss it. The Commissioner advised you that it is not fair to the employer or the practice of Fair Work Australia to grant extensions when the date of the hearing has been advised to the parties since 9 February 2010. The Commissioner asked if there was another day you might be able to attend in the next few weeks and said that if there was he might see if an adjournment was possible. The Commissioner also asked if it was possible for you to attend at a different time and said that if this was possible he would see if this might also be able to be accommodated. However, you advised that it was not possible to attend any day during the coming period because of your new job and that the earliest time you could get to the Tribunal on any day would be 6.30pm.
In the light of the above the Commissioner advised you that the matter will proceed on Monday 3 May 2010 at 10am and that the Commissioner will make a decision based on the material you have provided and the material provided by the employer. The Commissioner also said that any additional material you provided by tomorrow, Friday, would also be considered. In the event that you can attend on Monday then of course you will be able to fully participate in the proceedings. “
[9] The Applicant’s outline of submission provided on 28 March 2010 was as follows:
“I wish to submit the following points in support of my application in this matter:
• I was made redundant while I was on sick leave on Thursday 17th of December 2010. I was advised of my redundancy by John Hearn, the General Manager of Sypharma via phone on this day.
• Upon hearing this news, I questioned him about the reasons behind my redundancy and the requirements for obtaining my job again. He told me that I had been chosen by the Production Supervisor, Adam Bakri to be made redundant and also said that there was no chance of getting the job back. I found his response unsatisfactory as I believe that I have performed very well in my role and I subsequently asked Adam Bakri the reason why he had chosen me to become redundant despite my good performance. Adam denied picking me for redundancy. Adam also informed me that he had been warned by his managers not to speak to me about this issue.
• I then made requests to John Hearn for a meeting with him and Production Supervisors to discuss the issue. My request was denied and I was told that I was not allowed to go to Sypharm.
• In addition to this my privacy was not considered in this matter. My former co-workers were told of my redundancy before I was informed, something which I found to be quite unprofessional.
• The entire process was conducted without any transparency and no employee was consulted about their wishes, for example any preference for voluntary redundancy.”
[10] The Applicant did not provide any other material in support of her case and did not attend the proceedings on 3 May 2010. At the proceedings on 3 May 2010 the Respondent was represented by Mr Ryan Murphy from Australian Industry Group and Mr John Hearn, General Manager Sypharma Pty Ltd.
[11] The Respondent has provided documentary evidence that shows a very significant decline in production volumes in the 12 months prior to the redundancy in the area of the plant which represents 85% of the company’s business and which was the area in which the Applicant was employed. The evidence also shows that the decline in production was significantly greater than that forecast. The evidence shows that the company considered forecast production for the following year prior to considering redundancies. That forecast shows a further decline in production for 2010 when compared to the actual production in 2009.
[12] The evidence shows that there were 9 employees in the production area of the business including the Applicant. Two of these employees were supervisors and two had specialist skills in the mixing area. The evidence of the General Manager and the Production Manager was that during the week of 14 December the company determined to select two employees for redundancy from the remaining 5 employees. The evidence of the production manager is that of the 5 employees one was at level 1, two were at level 2 and two were at level 3. He decided to keep the two employees at level 3 “as they provide essential training to employees in lower classifications”. His evidence is that he decided to make the employee at level 1 redundant and that he selected the Applicant rather than the other employee at level 2 due to his assessment of her skill level when compared to the other employee.
[13] The evidence of the General Manager was that he also considered redeployment to other areas of the business including two very small associated entities but determined that this was impossible as there were surplus staff in that area as well which resulted in a further redundancy and the Applicant did not have the required skills.
[14] On 17 December the evidence of the General Manager and the Production Manager is that they decided to meet with the selected employees to advise them of the redundancy. However, one of those persons, the Applicant, was on a single day of sick leave. The following day was a rostered day off so the next opportunity to advise the applicant in person would have been the following Monday and the General Manager therefore decided to advise the Applicant by telephone as he was concerned that otherwise other employees might become aware of the redundancy before the Applicant. The General Manager’s evidence is that “as we had a small number of employees, I did not call for voluntary redundancies as we could not risk losing employee who are essential to our operation”.
[15] I am satisfied that there was a decline in production which was forecast to continue and which led to a justified business decision to make employees redundant in late 2009.
[16] I am satisfied that more than one employee was made redundant at the time the Applicant was made redundant. The employer no longer wishes the job the employees had been doing to be done by anyone.
[17] I am satisfied that the applicant was advised of the reason for the redundancy and the dismissal from her employment.
[18] I am satisfied that there is no evidence that the Applicant was targeted for a discriminatory reason or that the redundancy was being used as a cover for dismissal for another reason.
[19] I am satisfied that the applicant was advised by telephone for a legitimate reason due to her single day absence on the day when the employer advised the other employees about the redundancies.
[20] I see nothing unusual or improper about the fact that the employer finalised a new enterprise agreement with employees around the time that the redundancies occurred. The employer and employees clearly wish the business to continue even if at a reduced level and employees need to be paid properly regardless of the downturn in volumes.
[21] I am satisfied that redeployment was considered and was not a realistic option for the employer.
[22] The collective agreement, The Sypharma Pty Ltd Collective Agreement 2006, was in operation at the time of the redundancy and it incorporates clause 10 of the Manufacturing Chemists Award which deals with the obligations of the employer in a redundancy situation. The clause reads as follows:
“10.7.1 Subclauses 10.7.2 and 10.7.3 impose additional obligations on an employer where an employer contemplates termination of employment due to redundancy and a dispute arises (‘a redundancy dispute’). These additional obligations do not apply to employers who employ fewer than 15 employees.
10.7.2 Where a redundancy dispute arises, and if it has not already done so, an employer must provide affected employees and the relevant union or unions (if requested by an affected employee) in good time, with relevant information including:
• 10.7.2(a) the reasons for any proposed redundancy;
• 10.7.2(b) the number and categories of workers likely to be affected;
• 10.7.2(c) the period over which any proposed redundancies are intended to be carried out.
10.7.3 Where a redundancy dispute arises and discussions occur in accordance with this clause the employer will, as early as possible, consult on measures taken to avert or to minimise any proposed redundancies and measures to mitigate the adverse affects of any proposed redundancies on the employees concerned.”
[23] The Respondent submits that the Applicant was unhappy about the redundancy but did not raise a dispute. I believe that it is arguable that the Applicant did raise a dispute in her conversation with the General Manager in that she states that she found the General Manager’s reasons for her being selected for redundancy unsatisfactory.
[24] However, I am satisfied that the employees would have been aware of the fall in production volumes and that they, including the Applicant, were advised of the reasons for the proposed redundancy, the number and categories of workers to be affected and when the redundancies were to occur.
[25] The evidence of the employer is that the definite decision to make the redundancies was made shortly before the employees were advised and that in this sense the information was provided in “good time”. I have some doubts about this given that the production volume decline had been going on for a considerable time, however, in the absence of any evidence or submissions to the contrary I must accept the evidence of the employer. There is no evidence that affected employees requested union involvement.
[26] I am satisfied that the employer did consider measures to minimise the redundancies and the effect of the redundancies to some extent and advised the Applicant that there were no alternatives. I have some doubts about the adequacy of the consultations with the affected employees and the Applicant in particular. In addition the process by which the Applicant was informed about the redundancy by telephone was unfortunate. However, in the absence of any evidence or submissions to the contrary, on balance I accept the evidence of the employer that consultation which met the requirements of the Agreement and the Award did occur.
[27] The Applicant alleges that the process for selection for redundancy was unfair. The selection process outlined in the evidence of the Respondent suggests a process which was not in breach of the Award or the Agreement and which was not discriminatory. In the absence of evidence to the contrary I cannot find that the process was one that would allow me to conclude that there was not a genuine redundancy or that the provisions of the Award or the Agreement had not been followed.
[28] For all of the above reasons I am satisfied that the dismissal was a case of genuine redundancy and hence under Section 385 of the Act the dismissal cannot be unfair. The matter is dismissed.
COMMISSIONER
Appearances:
Mr R. Murphy for the Respondent
The Applicant did not make an appearance
Hearing details:
Melbourne
May 3 2010
1 PN51 to PN55.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR996710>
0
0
0