Ms Gillian Brooks v The Gowrie (WA) Inc
[2010] FWA 1471
•25 FEBRUARY 2010
[2010] FWA 1471 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
v
The Gowrie (WA) Inc
(U2009/11504)
COMMISSIONER WILLIAMS | PERTH, 25 FEBRUARY 2010 |
Termination of Employment.
[1] This application has been lodged by Ms Brooks (the applicant) who is applying for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). The respondent employer is The Gowrie W.A. Inc (the Gowrie).
[2] The application was dealt with by a Fair Work Australia conciliator however the matter was not settled.
Background
[3] The Applicant was employed as the General Manager of the Gowrie’s Training and Development department. By letter dated the 6th July 2009 the respondent notified the Applicant that her position as General Manager Training and Development had been made redundant along with another position of Training Co-ordinator. The letter further stated that the Applicant’s position had been re-classified and that a new position of Training and Development Manager would exist from 10 August 2009. This new position was at a reduced salary and did not include a vehicle. The Applicant was given a week in which to inform the Respondent whether she was willing to accept the new position.
[4] The Applicant it is agreed did not accept the “redeployment” offer. A second letter was sent from The Gowrie’s solicitors to the applicants representative on 30th July 2009 which traversed the history of the applicants employment and related issues and which states that on 6 July 2009 the Respondent gave notice to the applicant that her role was being made redundant and that as an alternative to being terminated as a result of the redundancy the applicant was offered redeployment to a new lower level role created as part of a restructure. This second letter went on to note the applicant had not accepted the redeployment and that the applicant’s position has been made redundant and that her employment terminated on 10August 2009.
The legislation
[5] The relevant provisions of the Act are set out below.
“s. 396 Initial matters to be considered before merits
FWA must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.”
“s. 385 What is an unfair dismissal
A person has been unfairly dismissed if FWA is satisfied that:
(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.”
[6] There is acceptance by the Gowrie that the application was made within the period required and that the applicant was protected from unfair dismissal.
[7] The Gowrie does however say that the dismissal was a case of genuine redundancy and therefore that by virtue of s.385(d) the applicant has not been unfairly dismissed.
[8] Section 396(d) requires FWA decide this objection before considering the merits of the application.
Was this a genuine redundancy?
[9] Section 389 defines 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.”
[10] The evidence of the numerous communications to the applicant and the applicant’s representative from or on behalf of the Gowrie between 6 July and 30 July all support the Gowrie’s argument that this was a genuine redundancy.
[11] The applicant however challenges this argument. It is submitted that the ‘new’ position had an almost identical job description to that held by the applicant. The new position of Training and Development Manager reports directly to the CEO as did the applicant as General Manager. For all intents and purposes the applicant says the ‘new’ Manager position is just like the applicant’s General Manager position. It cannot be said that the Gowrie no longer required the applicant’s job to be done by anyone because it quite clearly did and has appointed another person to do so.
[12] In addition it is submitted that there had to be changes in the operational requirements of the Gowrie’s enterprise. Nothing has been put forward by the Gowrie to indicate that this criteria in s.389(1) has been satisfied. On the evidence the applicant says it appears that the Gowrie due to financial reasons had decided it needed a cheaper manager for its Training and Development Department. This is not a case where the management of the Training and Development Department was being subsumed into an already existing role or being split up and given to various other managers. It was simply a reduction in the applicant’s salary and entitlements which was sought by the Gowrie. Thus it cannot be said that this was a genuine redundancy.
[13] In reply the Gowrie submit that the organisation was experiencing a downturn and could no longer afford the position of General Manager Training and Development. It is acknowledged by the Gowrie that there are similarities between the two positions in question however the key difference is that the new role of Training and Development Manager would have far less autonomy than the General Manager position and would be more accountable directly to the CEO. It is submitted that in its considerations the Gowrie looked to similar positions to that of the Training and Development Manager role that existed in their sister organisations in the other states.
[14] It is necessary then to consider the similarities and differences of the two positions.
[15] The applicant Ms Brook's explained in her evidence her history of employment with the Gowrie. When she was first employed in 2005 it was to the position of Training and Resource Coordinator and in July 2006 she was appointed Manager of Children's Services Training and Development. She says she was appointed General Manager of Training and Development in January 2007 1.
[16] In her evidence in chief and during cross examination Ms Brooks was asked to consider the job descriptions for the two positions 2. Ms Brook agreed that some of the circumstances mentioned in the background statement which is a preamble to the General Manager Training job description,3either did not eventuate or have changed since the this job description was given to her in 2007.
[17] Specifically the General Manager - Training job description states that the Gowrie operates services in both Western Australia and the Northern Territory. The evidence however is that no such Northern Territory operations existed at the time of termination and in fact, although this evidence is not direct, from submissions made on behalf of the applicant it appears that the Northern Territory division had closed down when she commenced as the General Manager 4.
[18] The General Manager - Training job description also states the Gowrie operates three child-care centres however there are now only two child-care centres operating 5.
[19] The General Manager - Training job description further states that there were approximately 100 staff, however at the time the applicants employment ended the staff numbers were approximately 50 6.
[20] The General Manager - Training job description when compared with the Training and Development Manager job description on their face demonstrate a number of other differences some of which were acknowledged by Ms Brooks in her evidence. For example the General Manager - Training job description states that tertiary qualifications in training and development, business, early childhood or equivalent were an “essential” selection criteria, whereas the Training and Development Manager job description also lists mandatory requirements but tertiary qualifications are not amongst these. Rather, a relevant tertiary qualification is listed under a heading only of “Preferred” qualifications and/or experience.
[21] Overall however Ms Brooks evidence was that in her view the two job descriptions refer to the same positions 7.
[22] The evidence of the Chief Executive Officer of the Gowrie Ms Hunt was that the financial difficulties the organisation found itself in, particularly in the training and development department, led her and the Gowrie’s Board to conclude that there was a need to change the arrangements to more appropriately reflect the needs of the department and to ensure the wages paid to the staff were aligned with the skills required of the positions and fell within the budgetary constraints of the organisation.
[23] Ms Hunts evidence was that the job description for the new Training and Development Manager position was in part copied from such a position that the Gowrie had in its Victorian operations. Her evidence was that the qualifications of the new position were less than were required in the General Manager - Training position and the leadership role was reduced because the role was that of a Manager and not a General Manager and there was no need for skills such as project management in the Managers position 8.
[24] I have considered the two job descriptions side-by-side. I find that the following specifications in the General Manager - Training job description are treated differently, as explained by the comments in brackets below, in the duty statement of the Training and Development Manager.
Objectives
Provision of leadership etc (leadership is mentioned but has a lesser emphasis)
Responsibilities
Identify, drive and implement the development of new projects and innovative approaches to service delivery (not required)
Identify and provide opportunities for professional development and training of staff (not required)
Provide management backup for the chief executive officer as required (not required)
Participate in and contribute to organisational strategic planning and achievement of outcomes (not required)
Actively engage in activities and projects with other areas of the organisation as appropriate (not required)
Proactive dissemination of knowledge, information and experience with other teams in other parts of the organisation (not required)
Keep up-to-date with organisational activities (not required)
Selection Criteria
Project management: Possess experience in the successful management of complex projects involving a range of stakeholders ideally within early childhood training and development all related areas. (not required)
Networking: Demonstrated skills in brokering partnerships with the community, government and non-government sectors within the community. (Building relationships is mentioned but is limited to the Childcare Sector)
Policy and strategic development (not required)
[25] The evidence is that the Gowrie’s operating circumstances that existed when the General Manager - Training position was offered and accepted by the applicant in 2007 are materially different from the circumstances that existed in July 2009. At this later time the Gowrie had no operations in the Northern Territory, operated only two child care centres rather than three and employed approximately 50 employees rather than 100. These changes demonstrate that the responsibilities of Ms Brooks in practice by July 2009 had been reduced markedly from those originally included in the General Manager – Training job description. Whenever and however these changes occurred they of themselves support the respondents argument that a different job from that offered to Ms Brooks in 2007 was what the organisation now needed to be done.
[26] Having identified the differences in the two job descriptions and having considered the evidence of the witnesses I accept the evidence of Ms Hunt regarding the differences between the two jobs. The job of Training and Development Manager is a position that will have less responsibility, less autonomy and will require a lesser skill set than the job of General Manager - Training required.
[27] I do agree with Ms Brooks there are many similarities in the two job descriptions. Indeed the similarities may outnumber the differences but the differences are significant ones in this case as Ms Hunt explained.
[28] I am satisfied that the two positions, General Manager - Training and the Training and Development Manager are two distinct and different jobs. Consequently it was open for the respondent to make the former position redundant. I accept that the respondent no longer required the job of General Manager - Training to be done by anyone.
[29] The decision to at the same time create the new position of Training and Development Manager being a position with less responsibility, less autonomy and requiring a less qualified and less experienced person and so being a position at a lower salary and with reduced conditions of employment was a business decision open to the respondent.
[30] The actions of the respondent in making the General Manager - Training job redundant and creating the new position of Training and Development Manager I am satisfied were made because of legitimate business needs. The evidence of both of the respondent’s witnesses supported by the Board minutes explained the financial difficulties the Gowrie believed itself to be in. The fact that months later the financial position was better than expected does not change this. These financial difficulties, as is often the case, triggered a review of the existing arrangements within the training and development department. The Gowrie came to the conclusion that the General Manager - Training position was unnecessary and a lesser role was all that was required to meet the department’s needs. This was a change in the operational requirements of the respondent's enterprise. As part of these changes another position, that of Training Coordinator was also made redundant. There is no doubt that reducing the cost of the staff was also driving the changes. As I have found earlier though the Training and Development Manager job was different from the General Manager job. There is no suggestion that these changes to the operational requirements were a sham. Consequently I am satisfied that what has occurred meets the requirements of s. 389(1)(a).
The Minimum Conditions of Employment Act 1993 (W.A.)
[31] With respect to the requirements in section 389(1)(b) the applicant's representative has argued that the respondent was required to observe section 41 of the Minimum Conditions of Employment Act 1993 (W.A.). This section is set out below.
s. 41: Employee to be informed
(1) Where an employer has decided to-
(a) take action that is likely to have a significant effect on an employee; or
(b) make an employee redundant.
The employee is entitled to be informed by the employer, as soon as reasonably practicable after the decision has been made, of the action or the redundancy, as the case may be, and discuss with the employer the matters mentioned in subsection (2).
(2) The matters to be discussed are-
(a) the likely effects of the action or the redundancy in respect of the employee; and
(b) measures that may be taken by the employee or the employer to avoid or minimize a significant effect,
as the case requires.
[32] Whilst it was not fully argued it seems that this provision of the State legislation would have become a Notional Agreement Preserving a State Award (NAPSA) by virtue of Schedule 8 Part 3 Division 1 Item 31 of the Workplace Relations Act 1996. This NAPSA is preserved by the operation of Schedule 3Continued existence of awards, workplace agreements and certain other WR Act instruments, Part 5Transitional instruments and the FW Act, Item 36 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. That being the case this section of the Minimum Conditions of Employment Act 1993 (W.A.) applied to the applicants employment at the time of the termination.
[33] The essence of s. 41 is that the affected employee is first entitled to be informed of their redundancy as soon as reasonably practicable after the decision has been made and secondly is entitled to discuss with the employer the likely effects of the redundancy and measures that may be taken to avoid or minimize this effect.
[34] In my view what occurred on 6 July 2009 was that the applicant was informed, by letter, as soon as reasonably practicable after the decision had been made that her job would be made redundant.
[35] From that point the applicant was entitled to discuss with the respondent the likely effects of the redundancy and measures that may be taken to avoid or minimise the effect. This was at all times open to her. The respondent never denied her an opportunity to have these discussions. There were in fact, up until the termination, numerous communications between the applicants representative and Ms Hunt and the Gowrie’s legal representatives. It seems to me in s. 41 there is no obligation on the employer to initiate or arrange a discussion as the applicants submission implies. Consequently I am satisfied that this section of the State legislation has been complied with.
[36] There is no suggestion that there were any other obligations in a modern award or enterprise agreement that applied to the employment so I am satisfied that s. 389 (1) (b) has been complied with.
[37] The applicant does not argue that s. 389(2) applies in this instance. In any case it is self-evident that the respondent did make the offer to the applicant to take up the role of Training and Development Manager but this was not accepted.
[38] I am therefore satisfied that within the meaning of s. 389 this dismissal was a case of genuine redundancy.
Conclusion
[39] In summary considering the initial matters under s. 396.
[40] I find that the dismissal was a case of genuine redundancy.
[41] Section 385 defines what is an unfair dismissal as follows:
“A person has been unfairly dismissed if FWA is satisfied that:
(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.”
[42] A person has been unfairly dismissed only if all of the criteria in s.385 (a), (b), (c) and (d) are satisfied.
[43] Because the dismissal was a case of genuine redundancy within the meaning of s. 385 the applicant has not been unfairly dismissed.
[44] Consequently this application will be dismissed and an order to that effect will issue in conjunction with this decision.
COMMISSIONER
Appearances:
Mr P. Mullally of Workclaims Australia on behalf of Ms G Brooks
Mr S Bibby of the Chamber of Commerce and Industry WA on behalf of The Gowrie (WA) Inc.
1 Statement of evidence Paragraphs 9 and 10
2 Transcript Paragraphs 239 - 290 & 463 - 466
3 Exhibit R2 Tab R
4 Paragraph 977
5 Paragraph 244
6 Paragraph 245 to 249
7 Paragraphs 239 - 290 & 462 - 466
8 Witness statement Paragraph 44 and 45 Transcript Paragraphs 701 & 746 – 752
Printed by authority of the Commonwealth Government Printer
<Price code B, PR994127>
2
0
0