Ms Abby Oldfield v VIP Bidco Pty Ltd T/A Real Petfood Company (VIP Petfoods)

[2016] FWC 8912

[2016] FWC 8912

FAIR WORK COMMISSION

DECISION

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

Ms Abby Oldfield
v
VIP Bidco Pty Ltd T/A Real Petfood Company (VIP Petfoods)
(U2016/5935)

COMMISSIONER HUNT BRISBANE, 12 DECEMBER 2016

Application for relief from unfair dismissal – genuine redundancy – application dismissed.

[1] This decision, now edited, was given ex tempore at the conclusion of proceedings on 12 December 2016.

[2] This application has been before the Fair Work Commission (the Commission) since April 2016, regarding the dismissal of Ms Oldfield on 7 March 2016.

[3] The respondent raised three jurisdictional objections. The first being that the application was made out of time. The second being that the applicant exceeded the high income threshold, and the third that the dismissal was a case of genuine redundancy.

[4] The first two jurisdictional objections were dismissed by the Commission in a decision of 5 October 2016. A hearing had been conducted today to determine the remaining jurisdictional objection.

[5] Ms Oldfield filed a witness statement and represented herself.

[6] The respondent was represented by Ms Alissa Taylor, Human Resources Director. Ms Taylor gave evidence, as did Mr Brad McLean, Sales Director.

[7] There are three considerations in determining if a dismissal was a case of genuine redundancy pursuant to s.389 of the Fair Work Act 2009 (the Act). Section 389 of the Act states:

“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.”

[8] Firstly, it is necessary for the employer to demonstrate that the employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the enterprise.

[9] Secondly, the employer has complied with any obligation within a modern award or enterprise agreement to consult with the employee. It is noted that this is not a requirement in this application as Ms Oldfield is not employed pursuant to a modern award, or an enterprise agreement.

[10] Thirdly, 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 an associated entity of the employer.

[11] With regard to the first consideration, the Commission has heard evidence that from October 2015, the respondent introduced a commercial outsourced opportunity, SalesLink to the business to assist with field sales merchandising requirements across the respondent’s grocery channel.

[12] Following a review of the sales team structure in January 2016, Ms Oldfield was moved to a role with responsibility largely for two large customers, Metcash and Aldi. This restructure became effective early February 2016.

[13] At around this same time, Ms Melanie Nelson was offered a role within the business as an Account Manager. The role was accepted by Ms Nelson on 9 February 2016. She commenced with the respondent on 10 March 2016.

[14] It is Mr McLean’s evidence that only after a review was undertaken in mid-February 2016, and a decision made to outsource the Metcash account to Saleslink as a “full service” offering was a decision made to make Ms Oldfield’s role redundant in late February. This was then communicated to Ms Oldfield on 7 March 2016, there being no obligation to consult with Ms Oldfield.

[15] I understand Ms Oldfield’s evidence and submissions to be that the respondent orchestrated a role restructure for her from as early as January 2016, effectively moving her into a role that would then be absorbed by Saleslink.

[16] There is no evidence before the Commission to support that position. The evidence of Mr McLean is preferred. Accordingly, the decision to make Ms Oldfield’s position redundant came only at the time when a decision had been made to outsource a large part of the role to Saleslink. I accept that the respondent did not make a decision to make Ms Oldfield redundant until later in February.

[17] Ms Oldfield also gave evidence that in around September or October 2016 a male employee had been employed by the respondent, and he is performing some of the work that was performed by her prior to being made redundant. I am not satisfied that a decision made six months’ post-termination of Ms Oldfield has any relevance to the decision made in March 2016 to make Ms Oldfield’s role redundant.

[18] Accordingly, I am satisfied that the respondent has met the jurisdictional hurdle with respect to s.389(1)(a) of the Act, that being the employer no longer required Ms Oldfield’s job to be performed by anyone else because of the changes made to outsource the Metcash work to Saleslink. Ms Nelson performing only a relatively small portion of the work previously performed by Ms Oldfield is not satisfactory to make a finding that Ms Nelson is largely performing the work earlier done by Ms Oldfield. This is clear in Ms Oldfield’s evidence.

[19] As earlier indicated, there is no requirement to give consideration to s.389(1)(b).

[20] With regard to s.389(2), it is necessary for the Commission to determine if it would have been reasonable in all the circumstances for Ms Oldfield to have been redeployed within the respondent’s business or associated entity.

[21] There is evidence before the Commission that the only available role was that of Brand Manager – Premium. Ms Oldfield gave evidence that of the Key Skills & Responsibilities in the job description, she felt she was competent in three areas.

[22] The first area being brand development - drives brand planning 18 months rolling; Mr McLean in cross-examination disagreed with Ms Oldfield with respect to this criteria and her capacity with the knowledge he has of her.

[23] The second being Agency Management – Develop research, brand briefs and tracking on agencies performances. Again, Mr McLean disagreed with Ms Oldfield’s assessment.

[24] The third being ‘Key Lead on Export’ and the bullet point within, ‘Working with Commercial team to bring it to life including alignment and compliances to overseas rules/regulations. Mr McLean agreed with Ms Oldfield she held this capability.

[25] Ms Taylor gave evidence that she did not consider Ms Oldfield had the required skills and experience to meet this role. If she were to be appointed to this role, there would be many months spent training her. The role was recruited externally, with the successful candidate accepting the role in mid-March 2016, approximately one week after Ms Oldfield’s dismissal.

[26] I have considered the role based on the job description. I do not consider that Ms Oldfield, even on her own assessment of three of the criteria, would have had the required skills and experience to adequately meet the requirements of the role in a reasonable period of time. I do not consider it would have been reasonable in all of the circumstances to have appointed Ms Oldfield to the role of Brand Manager as an alternative to making Ms Oldfield redundant. I have determined there is too large a skill gap, especially when some of the criteria are considered, including:

• Manage brand specifics (new product development) end-to-end development;



• Drives through the line branch touch point plan;



• Translate local brand identify to execution overseas.

[27] There is no obligation on the respondent to have employed Ms Oldfield into the role as an alternative to making her role redundant. It is not simply a case that because a role is available, and Ms Oldfield possesses only some of the skills, the respondent should employ her in the role and be required to spend months training her in the role. That is not the test required pursuant to s.389(2) of the Act. The test is whether it would have been reasonable in all the circumstances.

[28] I consider it reasonable in all of the circumstances for the employer to have not redeployed Ms Oldfield in the role of Brand Manager – Premium.

[29] Accordingly, Ms Oldfield’s dismissal was a genuine redundancy and the application before the Commission must be dismissed for want of jurisdiction.

COMMISSIONER

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