Ms Kaitlynn Northey v South Townsville Operations Pty Ltd T/A Crown on Palmer

[2016] FWC 7658

[2016] FWC 7658

FAIR WORK COMMISSION

DECISION

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

Ms Kaitlynn Northey
v
South Townsville Operations Pty Ltd T/A Crown on Palmer
(U2016/796)

COMMISSIONER BOOTH BRISBANE, 6 DECEMBER 2016

Application for unfair dismissal – genuine redundancy.

[1] Ms Kaitlynn Northey (the Applicant) alleged she was unfairly dismissed from her employment with South Townsville Operations Pty Ltd T/A Crown on Palmer (the Respondent).

[2] The Respondent’s response to the application (Form F3) was completed by Mr Kalvin Moore in his capacity position as General Venue Manager. The response asserted the dismissal was a genuine redundancy.

Chronology

[3] The Applicant’s application states she was employed by the Respondent as an apprentice from 22 July 2015. The Respondent stated the Applicant was employed as a 2^nd year apprentice chef and disputes the commencement date. The date submitted in their Employer Response was that the Applicant commenced on 9 November 2015 and was terminated while on probation.

[4] The Applicant was notified of her termination on 8 February 2016 and her last working day was 11 February 2016. An application for unfair dismissal remedy under the Fair Work Act 2009 (the Act) was made by the Applicant on 24 February 2016. The Respondent responded on 9 March 2016 asserting that the Applicant was made redundant due to a staff restructure in the kitchen.

[5] An attempt to resolve the matter was unsuccessful, and at the conclusion of it the Respondent was going to seek advice.

[6] The Respondent was contacted by my chambers about the matter. Mr Moore requested that the matter proceed with the jurisdictional objection.

[7] Directions were issued in response to this jurisdictional objection. On 28 July 2016 Mr Moore indicated that he was no longer involved in the business and further, he was no longer contactable on the email addresses that he had provided.

[8] Mr Moore was advised that he should provide a new email address for the Respondent. He did not respond to this request.

[9] Since the request all attempts to contact the Respondent have been unsuccessful. This is despite the various attempts to contact the Respondent. These are detailed below:-

• after the request for a new email address, contact person and no response, the matter was listed for a directions conference by telephone on 24 August. Again attempts at contacting Mr Moore were unsuccessful;



• written Directions were then issued for the lodging of submissions and witness statements in relation to the jurisdiction objection;



• the Respondent’s material was due on 8 September 2016, however, no submissions nor witness statements were lodged. An email was sent on 14 September 2016 to advise that the matter was to be set down for further conference by telephone;



• no representative of the Respondent participated; and



• further Directions were issued on 16 September directing parties to lodge submissions and witness statements. A letter was also sent on 16 September to the Respondent advising that they have a further opportunity to file material, however if there is non-compliance the matter will be determined without the benefit of their submissions and evidence.

[10] These directions were sent in the following manner:-

• Directions issued on 24 August 2016 sent by email to Fair Work Claims (representative for the Applicant) and by email to Kalvin Moore at Allure Events.



• Corrected Directions issued on 25 August 2016 sent by email to Fair Work Claims and by email to Kalvin Moore at Allure Events.



• Directions issued on 16 September 2016 sent by email to Fair Work Claims and by email and posted to Kalvin Moore at Allure Events.

[11] The Applicant lodged submissions on 7 October 2016, relying on the material disclosed in the Employer’s F3 response.

[12] Parties were requested to advise if they consent to the matter being determined on the papers. The Applicant advised it is their preference for it to be determined on the papers.

[13] Additionally, a copy of the application was also sent by registered mail to the Directors of the Respondent at its registered office in Sydney.

[14] This letter detailed the history of the matter and that Mr Moore had not complied with the directions as required. The Directors were advised that there had been a request from the Applicant that the matter be heard on the papers. As well, the Directors were invited to provide reasons why there had been no response to the matter since July 2016.

[15] The Directors were advised if no response was provided by Thursday, 10 November a decision on the further conduct of the matter will be decided without further recourse to the Respondent.

[16] No response was received either by 10 November or prior to this decision being published.

Legislation

[17] In deciding the jurisdictional objection raised by the Respondent, the Fair Work Commission (the Commission) must take into account s.389 of the Act.

[18] The Act states matters that must be taken into account in making that determination is as follows:

“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.”

[19] The Applicant’s case was contained in the outline of submissions filed on 7 October 2016. By these statements and submissions, the Applicant responds to the objection of genuine redundancy. These submissions are unchallenged.

[20] The Respondent submitted in its Employer Response that significant losses were impacting on the business and its sustainability, which resulted in a restructure that caused it to advertise for an experienced Head and Sous Chef.

[21] On the question of whether there was a genuine redundancy the Applicant submits:

• The work she performed was still required to be done. Further, she says that that the Respondent had commenced advertising for roles similar to those occupied by the Applicant within the other 3 businesses owned or managed by the Respondent.



• That the Respondent did not consult as required under the Hospitality Industry (General) Award 2010. In support of this submission the Applicant asserts and suggests that the F3 form confirms that at no time was the prospect of dismissal discussed with the Applicant prior to the notification of her dismissal.



• Additionally it is the Applicant’s evidence that because the Applicant was an apprentice, it was not open to the Respondent to place the Applicant on a new probationary period following the transfer of business.



• The Applicant submits, and it is supported by the letter of termination, there is no reference to the redundancy but instead relies on the ‘probationary period’.



• In response to the Respondent’s submission that the advertising of apprentices was not for Crown on Palmer but for the other 2 businesses, there is no evidence as to why these positions could not have been offered to the Applicant.

[22] There is no evidence that the Applicant was consulted about the redundancy. There is no evidence that the operational circumstances of the Respondent precipitated a restructure nor whether the Applicant’s duties were allocated among other staff that would be consistent with her being made redundant. The evidence from the Respondent is the other way, noting the advertising of other positions which may have been suitable.

[23] I am not satisfied that redeployment to another position in the Respondent’s associated entities was not practical or possible.

[24] The Applicant was not consulted as is required under the Award. Further, there is at least some evidence which has not been contradicted that redeployment was possible. Accordingly I find that the dismissal was not the result of a genuine redundancy.

[25] I now deal with, and give consideration to the Applicant’s application under s.387 of the Act.

“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 reason; 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.”

[26] Having regard to the provisions of s.387 I am satisfied that the dismissal of the Applicant was harsh unjust or unreasonable. I have formed this view and taken into account the criteria in s.387 noting ss.387(a), (b), (c), (d) and (e) are not relevant on the facts of this matter.

[27] Section 387(f) requires consideration of the size of the employer’s enterprise and whether it would likely impact on the procedures, the Applicant concedes that the Respondent appears to lack dedicated human resources support. This factor is neutral.

[28] Section 387(h) is relevant in that the Applicant was an apprentice with an ongoing expectation of work and training throughout her apprenticeship. In return for a training wage under the training contract the Respondent had certain obligations to meet to the Applicant. These were set out in her training contract. Addtionally, the impact on losing her apprenticeship has both personal and economic effects on the Applicant.

[29] Having found the Applicant’s dismissal was not the result of a genuine redundancy, and the impact of losing her apprenticeship, I have concluded that the dismissal was harsh unjust and unreasonable.

[30] I have considered the provisions of ss.390, 391 and 392. I have determined that it is appropriate that an unfair dismissal remedy be ordered. Reinstatement is not sought but compensation is.

[31] Submissions from the Applicant are that the Applicant was engaged under a training contract with the Respondent entity which had a nominal duration of 36 months. At the time of dismissal the Applicant had been in her apprenticeship for only 6 months.

[32] But for the dismissal she could have expected her appointment to have continued for the remainder of her duration of her apprenticeship.

[33] There were no issues with her conduct or performance.

[34] Turning to the factors in s.392(2) of the Act the Commission is required to take into account all of the circumstances of this matter. The particular matters that must be taken into account include the effect of the order on the viability of the Respondent’s enterprise. With no evidence from the Respondent, I have no evidence that any order would affect the viability of its enterprise.

[35] Notwithstanding a relatively short length of service the submissions are that if the Applicant had not been dismissed she would have continued in her employment for at least 12 months.

[36] Following the formula in Sprigg and subsequent cases¹ I have estimated the Applicant would have remained in employment for 12 months but for the termination for this period.

[37] While I am aware that the Applicant has been in employment since her dismissal I am not aware of the amount. However for reasons described below ultimately this will not affect the amount of compensation payable.

[38] I do not believe it is necessary to deduct any amount for contingencies.

[39] The reason that (in these circumstances) it is not necessary to have a precise amount for employment earned is that I have concluded that the Applicant would have remained in employment for 12 months. However, the compensation cap under the Act² limits compensation to the total amount of remuneration to which the Applicant would have been entitled for a period of employment during the 26 weeks immediately before the dismissal.

[40] I consider any deduction for employment earned in other employment would not require a reduction to the maximum entitlement.

[41] Finally, I’ve also take into account under s.392(2)(g) a factor which I consider relevant in considering ordering compensation. The conduct of the Respondent demonstrated little or no consideration of the Applicant’s status as an apprentice when terminating their employment. This is also a relevant circumstance in calculating compensation in this matter and I have done so.

[42] Taking all the factors into consideration I calculate compensation to the amount equal to the sum of 26 weeks remuneration calculated at the rate payable immediately before the dismissal.

[43] An order giving effect to this decision will be issued requiring payment within 14 days.

COMMISSIONER

1 Ellawalla v Australian Postal Corporation Print s5109 at [31]

2 s.392(5)

Printed by authority of the Commonwealth Government Printer

<Price code C, PR586770>