Ms Diane Taylor v Hose Corp Pty Ltd

[2015] FWC 784

[2015] FWC 784

FAIR WORK COMMISSION

DECISION

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

Ms Diane Taylor
v
Hose Corp Pty Ltd
(U2014/8467)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 9 FEBRUARY 2015

Application for relief from unfair dismissal - market conditions - whether redundancy - loss of future entitlement - long service leave - small business considerations - weight to be given to size of business and HR resource availability.

[1] This decision concerns an application made by Ms Diane Taylor (“the Applicant”) who is seeking an unfair dismissal remedy in relation to her dismissal, ostensibly for reason of redundancy, by Hose Corp Pty Ltd (“the employer”).

[2] The Applicant was employed in a full time capacity in various administration-related positions from July 2007 until her dismissal in July 2014. At the time of her dismissal the Applicant was employed as the Administration/Office Manager for the employer and was 59 years of age.

[3] The Applicant’s immediate manager was Mr Robert Prins, the owner/operator of the business.

[4] I make two preliminary observations.

[5] Firstly, for the purposes of s.385 and s.396 of the Fair Work Act 2009 (“the Act”), the Applicant is a person who is protected from unfair dismissal and no jurisdictional impediments to the application proceeding were raised.

[6] Secondly, the business is a small business. It employed at the time of the Applicant’s dismissal some 5 employees in all - a matter of fact that went undisputed. This is a concern to which I will return further below.

[7] The Applicant claims that her dismissal was harsh, unjust and unreasonable. Her reasons for this are as follows (in summary).

[8] The Applicant claims that her position was never made redundant, for reason that the employer continued to require her duties to be performed (by another person, Ms Danielle Trapp, whose role is discussed below).

[9] The Applicant claimed that she was unaware that there were any circumstances that could lead to her termination. The employer had not indicated that the business was under any financial stress or that it needed to make operational changes.

[10] The employer had increased the number of employees in the business in December 2013 when Ms Trapp was engaged as a casual employee - Ms Trapp was said to have remained engaged following the Applicant’s dismissal.

[11] The Applicant conceded that there had been a conversation in which it had been explained to the Applicant (by Mr Shenfield, a senior employee) prior to the engagement of Ms Trapp that the business “needed a part time person to cover me when I was on holidays, as the work used to pile up when I was away and I came back to it uncompleted.”

[12] The Applicant had passed stock take duties to Ms Trapp in December 2013 (which had had a very limited impact on the Applicant’s duties) and since April 2014 had trained Ms Trapp in some of the more substantive duties she had customarily performed (such as wages and cash conciliations). Ms Trapp was Mr Prins’ partner’s daughter. It would appear that Mr Prins had made use of young employees on other occasions in the past, including offering to employ the Applicant’s son (who had been made redundant from other employment) to complete stock take work.

[13] Ms Trapp, so the Applicant claimed, also had the benefit of being trained to make hydraulic hose whilst the Applicant was not given such an opportunity (owing to the fact that she was fully engaged in her own administrative duties). This was similarly the case regarding training in relation to forklift driving.

[14] The Applicant generally argued that had she been given the opportunity she may have been able to carry out Ms Trapp’s wider duties as well.

[15] Immediately prior to the termination the Applicant was informed that Ms Trapp would be undertaking the wages and some other of the Applicant’s ordinary tasks on a permanent basis from that time.

[16] The Applicant contended, in effect, that the termination was harsh because of the manner in which the alleged redundancy was communicated to her. Mr Prins purportedly informed the Applicant without wider explanation or context that:

“I will have to let you go.

It is the hardest thing I have had to do in my time at Hose Corp.

I value your friendship but I can’t keep going the way things are going.”

[17] The Applicant claimed Mr Prins had never indicated she was being made redundant owing to business conditions or operational circumstances.

[18] The Applicant claims in her written materials that she may have indicated to Mr Prins at the time of the termination that she would have expected her hours to be reduced rather than to be dismissed. But the Applicant herself conceded, at least in her written materials if not her viva voce evidence (which I deal with below), that there was a high degree of uncertainty whether she ever made such a statement to Mr Prins.

[19] It appears from the Applicant’s evidence that Mr Prins explained to the Applicant how he would manage the outstanding entitlements and notice but that the Applicant made no comment in this regard. A week later Mr Prins was said to have left a message on the Applicant’s voice mail about these matters.

[20] The Applicant claims that she was only provided a letter of termination subsequently upon her personal effects being collected. The letter of termination read as follows:

11 July 2014

Dear Diane

It is with the deepest regret that I write this letter of termination today. It is without doubt the hardest thing I've ever had to do in my time at Hose Corp. I hope you understand that the current economic climate has forced my hand.

Di you have been an awesome employee throughout the years and even though we knew each other before you came to work for me I feel that our friendship has grown immensely in the time that you were at Hose Corp. I've always trusted you unconditionally and the respect that I have for you is second to none. I wish you all the best the future.

Regards

[21] The Applicant also claimed that she had been planning to access her personal-carers’ leave in the future for a medical purpose, but that because of the termination that opportunity for paid leave was no longer available.

[22] According to the Applicant, the termination was also harsh because the Applicant was only a few days from being able to access pro rata Long Service Leave.

[23] No mention is made in the Applicant’s evidence that she ever raised with Mr Prins the issue about her access to Long Service Leave. There was no reference in any of the Applicant’s statements in this matter as to when she became aware of her entitlement in this regard.

[24] In all, the Applicant was of the view that Mr Prins had orchestrated the appointment of Ms Trapp to replace her in her role, and that there was no actual operational imperative that made for her termination (though in her written materials in which she commented upon efforts made to mitigate her losses the Applicant conceded that the regional Queensland economy was depressed).

[25] Further, the termination, according to the Applicant, was also related to the employer’s desire to avoid any liability for her pro rata accrual of Long Service Leave.

[26] But while the Applicant held these views, Mr Prins’ evidence was to the contrary.

[27] Mr Prins claimed that Ms Trapp was deliberately employed (in December 2013) to provide flexibility in the organisation. Ms Trapp was always intended to be able to cover for the Applicant in her absence (such as would have been the case when the Applicant took a planned medical absence) and was trained for that purpose.

[28] Ms Trapp had also been trained to make hydraulic hoses, the supply of which is the core business of the employer; assist delivery drivers and hose fitters if they needed assistance on a job; and was to be trained to use the forklift at the new site. Mr Prins had been impressed by Ms Trapp’s competent approach to the wide range of duties to which she was assigned.

[29] Mr Prins claimed that he was required to address his costs because by the second quarter of 2014 he watched “work dry up and the business income reducing at quite a rapid rate” as “the economic outlook in Mackay hit new lows.”

[30] As a further reflection on the continuing decline in the business environment, Mr Prins claimed that he was forced to reduce staff wages in October 2014, including his own, in an effort to “keep the Company viable”. The hose fitters wage rates were reduced by $5.00 per hour. The hose fitters’ overtime hours have also been reduced when they had previously been guaranteed.

[31] Mr Prins also claimed that he reduced his own hourly rate by $10.00 per hour in March 2014 and that the Applicant was well aware of the reasons why he had done that:

“[...] I don’t believe she can seriously claim that she was unaware of the issues or our trading situation.”

[32] Mr Prins determined to make the Applicant’s position redundant to address the market conditions facing the business.

[33] Mr Prins contended that he sought the advice of the Fair Work Ombudsman in late June 2014 as to the processes he would need to put into effect to terminate the Applicant’s employment for reasons of redundancy. The date of Mr Prins discussions with the FWO were recorded contemporaneously in his diary, which formed part of his evidence.

[34] When the Applicant was informed that her position was to be terminated, some three weeks after Mr Prins had consulted the FWO, Mr Prins stated that the Applicant replied:

“Well, I was expecting something like this. Work has been quiet for a while now.”

[35] Mr Prins’ evidence was that the Applicant’s prior duties had been re-allocated across the remaining staff, including Mr Trapp and himself, but also including the remaining two employees.

[36] No new employees had been employed since the Applicant’s dismissal in July 2014 and staffing levels remained at 4 persons.

[37] Mr Prins acted on that advice as he believed it to be (from the FWO), and claimed to not have been informed about any consultation requirements or the timing of which he had to provide a letter of termination.

[38] Mr Prins also claimed to be unaware of any entitlement the Applicant had to Long Service Leave after seven years of service. Indeed, Mr Prins claimed that he was also unaware that the Applicant was nearing the relevant date for pro rata access to that entitlement.

[39] Mr Prins argued that had he been aware of that entitlement and had sought to avoid any liability, he would have acted to terminate the Applicant’s employment at an earlier date (such as several weeks earlier when he had contacted the FWO), rather than a few days from the entitlement becoming available.

[40] Mr Prins went on to say that he did not intend for the letter of termination to be held back from the Applicant:

We also discussed her entitlements. She said she would be back in on the following Monday to collect her personal belongings.

After she had left I realised that I had not handed a termination letter so I left it with her personal belongings so she could collect it on the Monday.

[41] The Applicant did not return for her personal belongings. The Applicant’s sister appears to have collected them a number of weeks later, and included with the Applicant’s belongings was the termination letter.

[42] The letter of termination, cited above, makes express reference to the market conditions which caused the Applicant’s position to be made redundant.

Legislative provisions

[43] Section 387 of the Act sets out the criteria for considering whether a dismissal was harsh, unjust or unreasonable. Section 387 is as follows:

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

Whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)

[44] The Applicant’s dismissal was not a result of her capacity or conduct (in light of the reasoning of the Full Bench in UES (Int'l) Pty Ltd v Harvey [2012] FWAFB 5241 (“Re UES”)).

[45] The weight of evidence is that the Applicant’s employment came to an end for reasons of redundancy. My reasoning in this regard is set out further below.

[46] As a consequence, no finding can be made that there was a valid reason for the dismissal as the relevant statutory provisions have no application in this particular context (according to the Full Bench in Re: UES).

Whether the person was notified of that reason

[47] Because there was no valid reason for the dismissal (related to the Applicant’s capacity or conduct) there is no statutory requirement that the Applicant be notified of “that” reason.

Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[48] Again, because the decision to terminate the Applicant’s employment was because of redundancy, the circumstances do not reflect upon the Applicant’s capacity or conduct. Consequently, this provision also is irrelevant in the context of the current circumstances.

Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[49] The circumstances of this matter did not generate a situation in which the Applicant was refused an opportunity to have a support person.

If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[50] The dismissal did not relate to the Applicant’s performance.

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal

[51] The employer’s business is of a small size. Including the Applicant, there were 5 employees employed in the business at the time of the dismissal. Following the dismissal there were 4 employees. This number has not changed at the time of the hearing.

[52] The small size of the employer’s enterprise in my view impacted on the procedures followed in effecting the dismissal. Mr Prins sought the advice of the FWO in June 2014. There was no evidence that Mr Prins had turned his mind to the procedures to be utilised for purposes of effecting a dismissal. Mr Prins’ principal preoccupation was in managing the business and he was not alert to issues of procedural fairness and process. His source of information about managing entitlements in a redundancy came through a phone conversation with the FWO.

The degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal

[53] As a very small business, Mr Prins was unable to turn to any dedicated human resource management specialists or advice on effecting the dismissal.

Any other matters that the FWC considers relevant

Market conditions and the redundancy

[54] The evidence adduced in this matter establishes that Mr Prins has been truthful in his account of the circumstances that provided the context for the dismissal of the Applicant.

[55] If Mr Prins had not been truthful he would have had to have gone to unreasonable lengths to disguise his actual intentions in relation to the Applicant. Mr Prins would have needed to have had planned to reduce his own income well prior to the dismissal, and have taken steps also to reduce the hourly rates, as well as the overtime schedules, for his other staff employed in the core business of manufacturing hydraulic hoses, all in an effort to disguise his discrete conduct in relation to the Applicant. On the balance of probability, this is a most unlikely context.

[56] The profit and loss statements tendered in this matter further support my conclusions in this regard. Though some of the trend sales data since late 2013 shows stabilisation of sales, the business nonetheless has incurred losses of a significant degree over the longer cycle.

[57] The profit and loss statements show that total income between the 2012-2013 and 2013-2014 financial years fell 19%.

[58] Mr Prins’ decision making in relation to how he wished to configure his staff resources took place in the context of this comparative financial outcome. He went to seek the advice of the FWO about the Applicant’s redundancy in June 2014.

[59] Clearly, the business had experienced a downturn over the longer period, of a significant scale that was not fully explained by any other extraordinary items or one-off expenditures or liabilities. The evidence as led supported Mr Prins’ claims as to the operational imperative that he faced. It is a matter of some surprise to me, given the comparative performances between the two financial years, that the Applicant would have been unaware of an almost 20% decrease in turnover in the context of her particular administrative responsibilities. This is a matter to which I will return briefly below.

[60] In the context of an almost 20% decrease in revenue, there is little surprise (given he is the bearer of the risks) that Mr Prins’ mind turned to measures to achieve costs savings.

[61] I do add that evidence of an economic downturn is not required to justify an operational decision (to make a position redundant) for the purpose of improving profitability and/or adding to efficiencies overall. In this case, however, Mr Prins has asserted that his decision was driven by market conditions, and it is for this reason that I have focussed on the evidence of the claims as made in this regard.

Selection for and nature of redundancy

[62] The Applicant also argued that her position was not made redundant as the duties she performed were still required to be undertaken by the employer following her dismissal.

[63] Mr Prins did not replace the Applicant’s position with Ms Trapp. Ms Trapp took on a number of the Applicant’s duties, however Mr Prins took on some other duties, while the remaining responsibilities were shared across other staff.

[64] Despite the Applicant’s claims, the fact that the duties associated with the prior position continue to be required and continue to be performed does not cause the redundancy to fall into question. This much is made out in the Explanatory Memorandum to the Fair Work Bill 2008, which provides as follows in relation to the kinds of operational circumstances that can give rise to a redundancy situation and which reasonably comprise the definition of redundancy generally under the Act:

Clause 389 – Meaning of genuine redundancy

1546. This clause sets out what will and will not constitute a genuine redundancy. If a dismissal is a genuine redundancy it will not be an unfair dismissal.

1547. Paragraph 389(1)(a) provides that a person’s dismissal will be a case of genuine redundancy if his or her job was no longer required to be performed by anyone because of changes in the operational requirements of the employer’s enterprise. Enterprise is defined in clause 12 to mean a business, activity, project or undertaking.

1548. The following are possible examples of a change in the operational requirements of an enterprise:

a machine is now available to do the job performed by the employee;

the employer’s business is experiencing a downturn and therefore the employer only needs three people to do a particular task or duty instead of five; or

the employer is restructuring their business to improve efficiency and the tasks done by a particular employee are distributed between several other employees and therefore the person’s job no longer exists.

1549. It is intended that a dismissal will be a case of genuine redundancy even if the changes in the employer’s operational requirements relate only to a part of the employer’s enterprise, as this will still constitute a change to the employer’s enterprise.

1550. Paragraph 389(1)(b) provides that it will not be a case of genuine redundancy if an employer does not comply with any relevant obligation in a modern award or enterprise agreement to consult about the redundancy. This 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.

1551. Subclause 389(2) provides that 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 within the enterprise of an associated entity of the employer (as defined in clause 12).

1552. There may be many reasons why it would not be reasonable for a person to be redeployed. For instance, the employer could be a small business employer where there is no opportunity for redeployment or there may be no positions available for which the employee has suitable qualifications or experience.

1553. Whether a dismissal is a genuine redundancy does not go to the process for selecting individual employees for redundancy. However, if the reason a person is selected for redundancy is one of the prohibited reasons covered by the general protections in Part 3-1 then the person will be able to bring an action under that Part in relation to the dismissal. [My emphasis]

[65] As a consequence of Mr Prins’ changes to the organisation of the business, the Applicant was left with no duties to perform as her duties as they had been were now being performed by other employees in the business as a cost saving measure.The Full Bench in Ulan Coal Mines Limited v Howarth and Others [2010] FWAFB 3488 explored this very same matter:

[…] it was necessary to consider the meaning and application of the relevant statutory provisions and, in particular, the expression "the person's employer no longer required the person's job to be performed by anyone" in s.389(1)(a) of the Act. These words have long been used and applied in industrial tribunals and courts as a practical definition of redundancy (see e.g. R v Industrial Commission of South Australia; Ex parte Adelaide Milk Supply Cooperative Limited (1977) 16 SASR 6; Termination, Change and Redundancy Cases (1984) 8 IR 34 and (1984) 9 IR 115; Short v F.W. Hercus Pty Limited (1993) 40 FCR 511). They have also been adopted in the National Employment Standards provided under the Act in dealing with entitlements to redundancy payments (see s.119).

The Explanatory Memorandum to the Fair Work Bill 2008 provides examples as to when a dismissal will be a case of genuine redundancy […]

It is noted that the reference in the statutory expression is to a person's "job" no longer being required to be performed. As Ryan J observed in Jones v Department of Energy and Minerals (1995) 60 IR 304 a job involves "a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employees' organisation, to a particular employee" (at p. 308). His Honour in that case considered a set of circumstances where an employer might rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly-created positions. In these circumstances, it was said that:

"What is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the re-organisation, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position becomes redundant…" (at p.308)

This does not mean that if any aspect of the employee's duties is still to be performed by somebody, he or she cannot be redundant (see Dibb v Commissioner of Taxation (2004) FCR 388 at 404-405). The examples given in the Explanatory Memorandum illustrate circumstances where tasks and duties of a particular employee continue to be performed by other employees but nevertheless the "job" of that employee no longer exists.

In Kekeris v A. Hartrodt Australia Pty Ltd [2010] FWA 674 Hamberger SDP considered whether a dismissal resulting from the restructure of a supervisory team was a case of genuine redundancy. As a result of the restructure, four supervisory team leader positions were replaced by three team leader positions. The Senior Deputy President said:

"When one looks at the specific duties performed by the applicant prior to her termination they have much in common with those of two of the new positions in the new structure. The test is not however whether the duties survive. Paragraph 1548 of the explanatory memorandum makes clear that it can still be a 'genuine redundancy' where the duties of a previous job persist but are redistributed to other positions. The test is whether the job previously performed by the applicant still exists." (at par [27]) 1

[66] The Full Bench by its approach endorsed the reasoning in Kekeris v A. Hartrodt Australia Pty Ltd [2010] FWA 674.

[67] I add also that the process by which an employee is selected for redundancy is not relevant to a finding as to whether there was a valid reason for the Applicant’s dismissal. This much was set out in the Full Bench decision in Re: UES, which stated as follows:

We think it unlikely that it was intended that FWA’s consideration of whether there was a valid reason for the dismissal related to the person’s capacity or conduct would extend to the process for selecting the person for redundancy when:

(i) the process for selecting a person for redundancy is not relevant to FWA’s determination of an unfair dismissal remedy application if the s.389 criteria for a case of genuine redundancy are met, and

(ii) any unmet criteria in s.389 of the FW Act can be taken into account as part of s.387(h) in FWA’s consideration as to whether the dismissal was harsh, unjust or unreasonable.

To conclude otherwise would mean that where an employer met the s.389 criteria for a genuine redundancy the process for selecting the person for redundancy would not be a matter FWA would consider in respect of an unfair dismissal remedy application. However (unless the application was otherwise determined) an employer who did not meet the s.389 criteria because, for example, they failed to consult as required by s.389(b) of the FW Act would have both the failure to consult and the process for selecting the person for redundancy considered in any unfair dismissal remedy application. 2

[68] In any event, in my view, no issue arises as to the process of the selection of the Applicant for redundancy.

[69] No issue arises for these proceedings, I add, if Mr Prins sought to retain the services of Ms Trapp against those of the Applicant in the business circumstances as made out. It may have been that he was impressed by the competence with which she approached her varied duties (as he stated in his evidence) and/or that she represented a lower cost to the business. Such reasoning by the employer in relation to identifying a position for redundancy does not render the dismissal for operational reasons unfair. It is the legitimacy of the business objective that is important.

[70] I add that there was no attack on Mr Prins’ view that Ms Trapp was a competent employee.

Consultation and redundancy

[71] Demonstrably, Mr Prins afforded the Applicant no prior consultation in relation to his decision to make her position redundant. A failure to consult may render the dismissal harsh, unjust or unreasonable. Equally so, the failure to consult is not determinative in this respect.

[72] The Full Bench in Re: UES found that in the circumstances before it, the failure to comply with the consultation requirement in the applicable Modern Award was a relevant factor in determining whether the applicant’s termination was harsh, unjust or unreasonable:

In the circumstances the failure to so consult was unreasonable. We regard such a failure to consult as also a matter relevant to our consideration as to whether Mr Harvey’s dismissal was harsh, unjust or unreasonable. Further, it is a matter telling for a conclusion that Mr Harvey’s dismissal was harsh, unjust or unreasonable. 3

[73] The Full Bench in Re: UES took into account the employer’s failure to consult with the employee concerned and awarded a limited amount (two weeks) in compensation as a consequence.

[74] But what were the circumstances to which the Full Bench referred in reaching its finding?

[75] One of the circumstances with which the Full Bench in Re: UES was concerned was that the relevant employer had considerable resources at its disposal to manage and effect the termination process:

Size of the UES enterprise and human resource management (s.387(f) and (g))

UES has some 81 employees and a dedicated human resources manager. On the evidence, we conclude the size of the employer did not have a detrimental impact on the procedures UES followed in effecting Mr Harvey’s dismissal. In this case, we are prepared to regard it as a neutral matter with respect to our consideration as to whether Mr Harvey’s dismissal was harsh, unjust or unreasonable. UES has a dedicated human resource manager. Accordingly, the matter of the degree to which the absence of dedicated human resource management specialists or expertise in UES impacted on the procedures it followed in effecting Mr Harvey’s dismissal is not relevant to our consideration as to whether Mr Harvey’s dismissal was harsh, unjust or unreasonable. We regard it as a neutral matter with respect to our consideration as to whether Mr Harvey’s dismissal was harsh, unjust or unreasonable. 4

[76] The size of the employer and the extent to which it had access to human resource expertise was “a neutral matter with respect to [the Full Bench’s] consideration as to whether Mr Harvey’s dismissal was harsh, unjust or unreasonable.”

[77] Here, the employer was a very small business which employed some 5 employees. It had no access to any human resource expertise. The size of the employer and its access to human resource expertise, to an appropriate measure, must give weight to a finding that the dismissal was not harsh, unjust or unreasonable. The small size and absence of HR resources cannot be a “neutral” consideration (given the finding by the Full Bench in Re: UES in the context of a very much larger business with HR resources). Nor can it in some manner lend support positively to a finding that the dismissal was harsh, unjust or unreasonable.

[78] These circumstances (the small size and absence of HR resources) also contextualise the employer’s conduct in not consulting with the Applicant prior to her dismissal.

[79] It seems to me that the circumstances of this case broadly are more akin to the circumstances that were before Senior Deputy President Watson in his decision in P Murrihy v R Mechanical Services Pty Ltd[2012] FWA 8416, which concerned a redundancy situation, rather than those handed up to me. In that decision, his Honour held as follows:

Taking into account the matters arsing under s.387 of the Act referred to above, I am not satisfied that the applicant’s dismissal by the respondent was harsh unjust or unreasonable. A failure to consult can, when considered against all other relevant matters within s.387 of the Act, mean a dismissal was harsh, unjust or unreasonable. However in the circumstances of this matter, I find that the failure to consult, although unreasonable, does not lead to a conclusion that the dismissal was harsh, unjust or unreasonable, given the valid reason for the dismissal and proper regard to the effect of the size of the enterprise and the absence of human resource management specialists or expertise on the processes applied (or not applied) by the respondent.

Balancing all of the relevant considerations under s.387 of the Act in the circumstances of the matter, I find that the termination was not harsh, unjust and unreasonable. The application is dismissed. 5[My emphasis]

[80] To this I add that Mr Prins delayed the decision to make the Applicant redundant for reason of an unrelated issue concerning the personal circumstances of another employee. As a consequence, the Applicant was not made redundant until some three weeks after Mr Prins had contacted the FWO to enquire about the entitlements which he was required to pay the Applicant as a prelude to dismissal.

[81] I think in this wider context that it would have been unlikely that Mr Prins would have reasonably further delayed giving effect to the redundancy, even if the Applicant had sought to make a developed submission of one kind or another.

[82] Notwithstanding the ambiguous terms of her written statement, the Applicant in her viva voce evidence claimed she mentioned to Mr Prins at the time of the dismissal that she “expected her hours to be cut” after Mr Prins indicated he “had to let her go”. Why the Applicant “expected” her hours to be reduced was never satisfactorily explained under questioning, and seemed to lend support to Mr Prins’ claim that the Applicant had stated that she expected the decision (see above). But that aside, even if I was to take the words said to have been uttered by the Applicant as a being a proposal to reduce hours, it was met (effectively) with an effectively negative response by Mr Prins (according to the Applicant).

[83] It also seems to me to be a reasonable inference given the business’ size and lack of resources and Mr Prins’ preference to remove the dedicated administrative position, consultation - had it been extended to the Applicant - would not have been stretched out over a five calendar day period (or three business days including a weekend). Given the circumstances of the business, with now only 4 positions, the consultation conceivably only could have been engaged in for a very short period of time indeed, perhaps a day.

Long Service Leave

[84] The Applicant otherwise presses the claim that the decision to make her redundant was rendered unfair for reason that she was denied access to her Long Service Leave entitlement, as it was to crystallise some five calendar days after the dismissal. The Applicant also claimed that the decision to terminate her employment as her position had become redundant also meant she was unable to access paid personal and carers leave for a future medical procedure.

[85] Mr Prins claimed, and did so without any serious challenge, that had not known about the Long Service Leave pro rata entitlement arising after seven years of service. Had he known of the existence of the entitlement - and had he been motivated to deny the Applicant access to that entitlement - he would have acted at a much earlier point in time than he did. But Mr Prins was not so motivated and had no knowledge of the imminent entitlement. Nor it seems did the Applicant at the time of the dismissal, or for a reasonable period thereafter (given that the matter was never agitated with Mr Prins until such time as the unfair dismissal application itself was made).

[86] In the end, Mr Prins reached the decision to make the Applicant’s position redundant in the context of the operational circumstances that faced the business. He did not fabricate the operational circumstances and his business response to those circumstances was legitimate. Any consequences for the Applicant’s entitlements was incidental only.

Conclusion

[87] The Applicant’s position was made redundant and her employment was terminated as a consequence. The employer elected to abolish the dedicated administration manager position and to distribute the duties amongst the remaining 4 staff. The employer had no ulterior motive. It chose, given the market conditions, to configure its business on a lower costs basis, and with what appears to be a bias for operational roles.

[88] The employer failed to consult the Applicant in the course of so doing. In some circumstances this could render a dismissal harsh, unjust or unreasonable. But when all the circumstances of this case are taken into account, including that the employer’s business was of very small size with limited options, and that Mr Prins had no access to any in-house human resource expertise to guide his procedures, I consider that the dismissal was not harsh unjust or unreasonable.

[89] The Full Bench in Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport [S5897] found that in determining whether a dismissal was harsh, unjust or unreasonable, it was necessary to consider the totality of the circumstances of the termination and ensure that a “fair go all round' is accorded to both the employer and the employee concerned":

[81] [...] We have also had regard to the fact that the relevant statutory regime is intended to ensure that "in the consideration of an application in respect of a termination of employment a `fair go all round' is accorded to both the employer and the employee concerned" (see s.170CA(2)).

[90] Former s.170CA(2) of the (former) Workplace Relations Act 1996 is now replicated at s.381(2) of the Act.

[91] My decision is intended to give effect to that statutory objective.

[92] In so concluding I have also taken into account the Applicant’s claim (in effect) that the termination was also harsh as she could have utilised her personal and carers’ leave she would have accrued but for the termination for purposes of paid leave in relation to a future medical procedure. This is a matter (taken on its own or otherwise) that is not of sufficient weight to render the dismissal harsh, unjust or unreasonable.

SENIOR DEPUTY PRESIDENT

Appearances:

Ms J. Ansell, of M+K Lawyers, for the Applicant

Mr C. Joy, of Craig Joy Workplace Consulting, for the Respondent

Hearing details:

2015

Brisbane (and Mackay by video)

2 February

 1   Ulan Coal Mines Limited v Howarth and Others [2010] FWAFB 3488 at [15]-[18].

 2   UES (Int'l) Pty Ltd v Harvey[2012] FWAFB 5241 at [28]-[29].

 3   Re: UES at [48].

 4   Re: UES at [46].

 5   P Murrihy v R Mechanical Services Pty Ltd[2012] FWA 8416 at [40]-[41].

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