Ms De'arne Kershler v Ardyaloon Incorporated
[2012] FWA 3709
•30 APRIL 2012
[2012] FWA 3709 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms De'arne Kershler
v
Ardyaloon Incorporated
(U2011/14193)
DEPUTY PRESIDENT MCCARTHY | PERTH, 30 APRIL 2012 |
Termination of employment - genuine redundancy.
Background
[1] I gave a decision in this matter on transcript at the conclusion of proceedings on 27 April 2012. This is a written and edited version of that decision. 1
[2] Ms De’arne Kershler (the Applicant) filed an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) asserting that she was unfairly dismissed from her employment by Ardyaloon Incorporated (the Respondent).
[3] The Applicant was employed as the Manager of a Fish and Marine Hatchery, an enterprise run by the Respondent. The Respondent represents the Bardi Jawi Native Title holders of One Arm Point on the Dampier Peninsular and Buccaneer Archipelago including area waters in the Region. The Ardyaloon community is located at the northern end of the Cape Leveque Road on the Dampier Peninsula in the Kimberley Region. It is in the Shire of Broome and is surrounded by the waters of the King Sound and the islands of the Buccaneer Archipelago.
[4] The Respondent supports a number of economic activities, including a Supermarket, Trochus Shells harvesting and sale (the Respondent has a lease and environmental approval to gather trochus shells for sale) and Kooljamon Resort (located to the west at Cape Leveque. Though not directly in Ardyaloon, it is 50% owned by the community.)
[5] The Respondent asserts that the dismissal was a genuine redundancy. If it was a genuine redundancy then by operation of s.385(d) of the FW Act if I am satisfied dismissal was a case of genuine redundancy, it cannot be an unfair dismissal. Further, by operation of s.396(d), I must decide whether dismissal was a case of genuine redundancy before I deal with whether the dismissal was unfair.
[6] Section 389 of the FW Act provides that:
“(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.”
Consideration and finding regarding whether job no longer required
[7] The Chairperson of the Council of the Respondent, Ms Rowena Mouda, gave evidence that the hatchery was started because of the trochus and that they both go hand in hand. When she became Chairperson, in about 2009, she set about examining the financial position of the Respondent and its various activities.
[8] She formed a view that the continued operation of the hatchery was going to be difficult but nevertheless was worth persevering with in the hope that it would not operate at a loss.
[9] When the Applicant was engaged in 2010, Ms Mouda made it clear to her that the hatchery was making losses and needed a lot of effort and work. Other witnesses confirmed that it was fairly common knowledge that the hatchery had been operating at a loss for some years.
[10] Ms Vicki Bertoli was employed for about three months until 25 May 2011 as Acting Chief Executive Officer. She gave evidence that she held conversations with the Applicant where it was clear that the hatchery was experiencing financial problems. This included providing the Applicant with a number of financial reports and an invitation to be provided with further and regular reports.
[11] The financial situation was exacerbated as a consequence of income from the sale of trochus shells that had not eventuated and in particular, an expected significant sale had not occurred.
[12] Christine Carey gave evidence that she started as the community Chief Executive Officer on 20 May 2011. She held discussions with Mouda, Bertoli and Gareth Owen from the accountancy firm contracted by the Respondent. Ms Carey understood that the Applicant had been advised clearly that if things did not improve for the hatchery it would have to close.
[13] It appears that it was decided that the hatchery would continue operating until the end of the tourist season (November) and it would be reviewed at that time and once the financial figures were available. The Applicant disputes that she was ever told that a decision would be taken at the end of the tourist season about the continuation of the hatchery.
[14] It appears that the Respondent was formally advised by the accountants of the audited figures on Friday, 25 November. The report showed a substantial loss.
[15] When the accountant’s report was provided to the Respondent a decision was taken to close the hatchery and as a consequence to dismiss the Applicant. The Applicant was advised on Monday, 28 November of that decision and given notice of termination of employment.
[16] It is clear from the Applicant’s evidence and submissions that she put substantial effort into running the hatchery and improving its performance, especially by trying to diversify and increase its revenue. These endeavours were supported by the Respondent. The Applicant believed the performance had improved and the hatchery did have a viable future. That view appears to have been supported by Ms Lee, Community Development and Planning Officer for the Ardyaloon and Djarindjin communities, and a person the Applicant seems to have received advice from or at least held discussions with regarding the Hatchery’s operations.
[17] The Applicant disputes the accuracy of the financial figures that the Respondent based its decision on and clearly considers that it was not necessary to make the decision, believing the financial performance had improved and it would continue to improve.
[18] The hatchery has been run on maintenance type mode by volunteers since the Applicant’s dismissal.
[19] It is clear to me from the evidence that the Respondent made a decision to discontinue operating the hatchery. Ms Mouda gave clear and convincing reasons for the decision that was taken and how that decision was arrived at. I found her to be a very credible witness. Even the Applicant herself in the end did not appear to dispute that decision but rather the consultation, or allegations or lack of it, together with the lack of opportunity to be redeployed.
[20] The decision the Respondent made was one it had the right to make. Whether the figures and financial reports it based the decision on justified the decision made is not the issue under consideration here. What is under consideration is whether the decision was one that was based on operational requirements and the job no longer being needed.
[21] The Respondent clearly decided that it was in its interests to close the hatchery and viewed it as a proper and appropriate operational change. There is nothing to suggest it did not make that decision and did not move immediately to implement the decision and the consequences arising from it. There is no evidence that the decision was a ruse or a sham or there was some other motive to make the decision. To the contrary, it seems to me that the decision was soundly based. Lest there be any doubt, it also appears to me that the financial basis for the decision was based on advice and audited reports that not only justified the decision, it made it a compelling case for it.
[22] The consequence of the decision is that the job the Applicant had been performing was no longer required to be performed by anyone. The Applicant, in particular, does not appear to really contest this element. Rather, she disputes the decision itself. However, as I pointed out to the Applicant’s representative during the hearing it is not this tribunal’s role to second guess the decision made but rather, whether there were operational requirements that resulted in the loss of the job. It does not matter how the requirements arose, as long as they did.
[23] I therefore find that 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.
Consideration and finding regarding compliance with award regarding consultation
[24] It is not contested that the Applicant was an award covered employee. The consultation provisions that would apply to her are as follows:
8.1 Employer to notify
(a) Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must notify the employees who may be affected by the proposed changes and their representatives, if any.
(b) Significant effects include termination of employment, major changes in composition, operation or size of the employer’s workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations; and the restructuring of jobs. Provided that where this award makes provision for alteration of any of these matters an alteration is deemed not to have significant effect.
8.2 Employer to discuss change
(a) The employer must discuss with the employees affected and their representative, if any, the introduction of the changes referred to in clause 0, effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees and must give prompt consideration to matters raised by the employees and/or their representatives in relation to the changes.
(b) The discussions must commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in clause 0.
(c) For the purposes of such discussion, the employer must provide in writing to the employees concerned and their representatives, if any, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees provided that no employer is required to disclose confidential information the disclosure of which would be contrary to the employer’s interests.
[25] The Applicant asserts these requirements were not met. She asserts that at no time was she advised that her employment could be in danger, or that she was given an opportunity to canvass alternatives to the closure of the hatchery.
[26] The Respondent asserts that the requirements were met. They say that in discussions in May 2011 with Ms Bertoli it was made clear to the Applicant that the viability of the hatchery was in question. Other evidence also establishes that the hatchery had made losses for many years and it appeared fairly common knowledge that its future was not assured.
[27] I do not accept nor agree with the inferences the Applicant makes that she was totally unaware of the prospect or potential for the hatchery to cease operations.
[28] In any event, the terms of the award did not require consultation until a definite decision had been made. A definite decision was made on Friday, 25 November. There is ample evidence to support that was the date of the decision and there is no evidence to support any other date. The Applicant made generalised inferences in that regard. I do not accept those inferences as reliable and even if they were, they are not sufficient when weighed against the direct evidence of Ms Mouda and Ms Carey.
[29] The Applicant was advised of the decision and its consequences on 28 November. I consider this satisfied the requirement of being as soon as practicable after the decision was made. The purpose of the meeting and advice to the Applicant was clearly the effect of the decision made.
[30] The requirement of the award is to discuss the effects of the changes, the measures to avert or mitigate the adverse effects of changes and to give consideration to matters raised. The Applicant seems to me to misapprehend the nature of the requirement. It is not a requirement for the discussion to consider the rightness or wrongness of the decision. Rather, it is a requirement to discuss the consequences of the decision as a means of endeavouring to avert or mitigate the adverse effects of the decision. Where there is a decision to terminate employment, it is the consequences of the decision to dismiss that must be discussed, not whether the decision itself should have been taken. The requirement is also not to be confused with the considerations the tribunal itself must consider in unfair dismissal terminations involving conduct or performance.
[31] I also mention, for the sake of completeness, the facts and circumstances here are completely different to those in Mr Jamil Maswan v Escada Textilvertrieb T/A ESCADA (Esacada) 2andin Wang and others v Specialty Fashion Group Ltd (Wang).3 In Wang, the issue was which 21 employees should be dismissed and under what selection criteria where a large number of employees were to be retained. In Escada, the circumstances were that a decision was made but the decision was kept from the employee, indeed he was given false reassurances contrary to the decision.
[32] I therefore find that the Respondent did comply with its obligations under the award and as a consequence, satisfied the requirements of s.389(1)(b).
Consideration and finding whether the Applicant could have been redeployed
[33] Ms Mouda gave evidence that there were no other suitable positions that the Applicant could be redeployed to.
[34] The Applicant asserts that there were, although the only positions that seem to have potentially been available involved lower skilled jobs in the store. These jobs are generally held by "locals", almost always indigenous people from the community. In practice, preference is given to locals for these jobs for a number of reasons.
[35] Other considerations relevant to the appropriateness for the Applicant to be redeployed to the abovementioned position or other positions, are the remoteness of the site with the consequence that housing would need to be provided for her but that need does not arise for locals. I regard these positions as not of a nature that would make them suitable alternative positions for the Applicant.
[36] I accept Ms Mouda's evidence that there were no suitable alternative positions, whether they were the abovementioned or any other positions, and it would not have been reasonable to have offered another position to the Applicant.
Conclusion
[37] I therefore find that the dismissal was a genuine redundancy and dismiss the application as a consequence.
DEPUTY PRESIDENT
Appearances:
Mr N Kershler on behalf of the Applicant.
Mr D Ellis on behalf of the Respondent.
Hearing details:
2012.
Broome:
April, 26 & 27.
1 Transcript was still not available at the time of issuance.
2 [2011] FWA 4239
3 [2011] FWA 6872
Printed by authority of the Commonwealth Government Printer
<Price code C, PR523241>
0
2
0