Ms Flor Blanco v Dr J C Ford Pty Ltd
[2012] FWA 4305
•7 JUNE 2012
[2012] FWA 4305 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Flor Blanco
v
Dr J C Ford Pty Ltd
(U2011/14450)
COMMISSIONER MACDONALD | WOLLONGONG, 7 JUNE 2012 |
Application for unfair dismissal - redundancy - jurisdictional objection - FWA finding of no jurisdiction.
[1] This decision arises from an application by Ms Flor Maria Blanco (the applicant) pursuant to section 394 of the Fair Work Act 2009 for a remedy in respect of her dismissal by Fanberg Pty Ltd (the respondent). At the start of the proceedings, the respondent advised that the applicant had incorrectly named the respondent as Dr J C Ford Pty Ltd and invited the applicant to amend her application accordingly. The application was so amended.
[2] The unfair dismissal application was lodged with Fair Work Australia (FWA) on 8 December 2011.
[3] The Employer’s Response to the unfair dismissal application was filed on 22 December 2011 and advised that the applicant’s cessation of employment was due to a genuine redundancy.
[4] The application was listed for conciliation before an FWA Conciliator on 19 January 2012 but it did not take place.
[5] FWA received a Notice of Representative Commencing to Act on 2 February 2012, from Mr David Potts, Solicitor, Kells The Lawyers. On the same day, FWA received a Form F4, Objection To Application For Unfair Dismissal Remedy. The Form F4 set out two (2) objections to the unfair dismissal application: (a) the applicant’s cessation of employment was a case of genuine redundancy; and (b) in the alternate, the applicant had resigned her employment.
[6] The unfair dismissal application was then programmed for a Jurisdiction Hearing on 3 May in Wollongong.
[7] At the Jurisdiction Hearing, the applicant represented herself and she also gave evidence from the witness box. The applicant’s unfair dismissal application and annexures and an email of the applicant’s sent to my chambers, were entered as exhibits.
[8] The respondent was represented by Mr Potts who called Dr John C Ford as a witness, who had also put on a witness statement.
BACKGROUND
[9] The applicant had been in the employ of the respondent since 1997.
[10] The respondent is a medical practice: Consultant Cardiologist Practice. Dr Ford is a Consultant Cardiologist.
[11] In 2011, the respondent had ten employees, one of whom was the applicant. During 2011, Dr Ford decided upon retirement and the closure of the business. Employees were advised of this decision.
[12] Dr Ford gave notice to the applicant, around 9 November 2011, of his intention to make her redundant, effective 23 December 2011.
[13] Subsequently, the applicant handed in her letter of resignation dated 25 November 2011.
[14] As part of the transitioning to closure of the business, Dr Ford kept one employee working on a part-time basis.
[15] The applicant filed an unfair dismissal application on the basis that she should have been offered the job performed on a part-time basis. The applicant had been engaged as a full-time employee.
FINAL SUBMISSIONS
For the Respondent
[16] Mr Potts, solicitor for the respondent, put that the dismissal of the applicant was a case of genuine redundancy. The respondent had consulted or first notified the applicant of the potential change in the future of the business in January 2011. There was a discussion between Dr Ford and the applicant in September 2011. The applicant was given notice in November 2011 as to her retrenchment. The business of the respondent went from about 11 employees down to one part-time employee.
[17] Mr Potts also referred to the other jurisdictional objection to the unfair dismissal application, being that the applicant had resigned her employment subsequent to notice of retrenchment and therefore there was no dismissal.
For the Applicant
[18] The applicant submitted that her dismissal was unfair because she was not offered the part-time job. Further, the person carrying out that part-time job was carrying out the work previously performed by her (the applicant).
CONSIDERATION
[19] Section 385 of the Act stipulates that FWA must be satisfied that four (4) cumulative elements are met in order to establish an unfair dismissal. These elements are:
“(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”
[20] In this case, the respondent raised section 385(d) as an issue. That is, the respondent submitted that the applicant’s dismissal was a case of genuine redundancy.
Genuine Redundancy ?
[21] Section 389 sets out the meaning of genuine redundancy and is in the following terms:
“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.”
[22] The applicant’s submission was that her full-time job was still being performed by the one remaining part-time employee. FWA was not taken by the applicant (self-represented) to section 389 of the Act in order to marry up her submission with section 389. Be that as it may, it seems to me that the applicant’s submission could fall within section 389(1)(a) and 389(2)(a).
[23] I will now apply the facts of the case to the meaning of genuine redundancy set out above. If the applicant can show that either section 389(1)(a) or 389(2)(a) have not been satisfied, then the applicant will have overcome the jurisdictional objection raised by the respondent and then be able to pursue her unfair dismissal application.
[24] The meaning of genuine redundancy, as set out above, has been considered by a Full Bench of Fair work Australia: Ulan Coal Mines Limited v Henry Jon Howarth. 1In that case, the Full Bench considered whether the retrenchment of a number of mineworkers was one of genuine redundancy. The Full Bench said:
- 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.”
“...
[15] These were the circumstances in which 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).
[16] The Explanatory Memorandum to the Fair Work Bill 2008 provides examples as to when a dismissal will be a case of genuine redundancy:
“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:
[17] 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.
[18] 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])
[19] In the present case, the Commissioner appears not to have drawn an appropriate distinction in his reasoning between the “jobs” of the mineworkers who were retrenched and the functions performed by those mineworkers or take proper account of the nature of the restructure at the mine which led to an overall reduction in the size of the non-trades mineworker workforce. The Company restructured its operations in various ways including by outsourcing certain specialised, ancillary and other work and increasing the proportion of trade-qualified mineworkers in underground development and outbye crews. As a result, it was identified that there were 14 non-trades mineworker positions which were surplus to the Company’s requirements. The mineworkers whose employment was to be terminated were determined according to the seniority principle as provided in the Agreement. This did not mean that the functions or duties previously performed by the retrenched mineworkers were no longer required to be performed. It also did not mean that the positions of some of these mineworkers (e.g. in underground crews) did not continue, although those positions might after the restructure be filled by more senior non-trades mineworkers transferred from other parts of the operations or by trade-qualified mineworkers. However fewer non-trades mineworker jobs were required overall at the mine as a result of the operational changes introduced and, for this reason, the jobs of the 14 mineworkers selected for retrenchment could be said to no longer exist.
[20] These circumstances readily fit within the ordinary meaning and customary usage of the expression in s.389(1)(a) of the Act where a job is no longer required to be performed by anyone because of changes in the operational requirements of the employer’s enterprise.
...”
[25] The foregoing quote deals with the meaning of “the person’s employer no longer required the person’s job to be performed by anyone ...”. The full Bench referred to case law which considered the meaning of ‘job’ and that “job involves a collection of functions, duties and responsibilities”. A company might then retrench an employee by doing away with all of the duties attached to a job or retrench an employee by redistributing all or some of those duties to another employee(s). In those circumstances just described, there can be a genuine redundancy even though duties once performed by the retrenched employee still exist and are being performed by another or other employees.
[26] In this case before me, the applicant said that duties carried out by her had been transferred to another employee who is a part-time employee. The applicant contended that the part-time job should have been offered to her. 2 That then is the basis of her claim that her retrenchment was not a case of genuine redundancy.
[27] However, under cross-examination, the applicant stated that she could not work part-time. Thus: “I have always said I couldn’t work part-time, and Dr Ford was aware of that.” 3
[28] Given the applicant’s evidence that she could not work part-time employment, then that evidence defeats her own claim of there not being a genuine redundancy because the part-time job should have been offered to her.
[29] The other section of the Act that might have application to the applicant’s circumstances, is section 389(2)(a): the applicant’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the applicant to be redeployed within the employer’s enterprise. But as there was only one job left out of the original eleven jobs and given that it is a part-time job which the applicant would not accept, then it is not a case of non-genuine redundancy.
CONCLUSION
[30] Having considered all of the evidence and the submissions, I find that the retrenchment of the applicant is a case of genuine redundancy.
[31] Accordingly, I now dismiss the applicant’s unfair dismissal application pursuant to section 385.
COMMISSIONER
Appearances:
Ms Flor Blanco, self represented.
Mr David Potts, solicitor, for the Respondent.
Hearing details:
Wollongong
2012
3 May
1 [2010] FWAFB 3488
2 Exhibit 1
3 Transcript, PN 73
Printed by authority of the Commonwealth Government Printer
<Price code {C}, PR523967>
0
6
0