Ms Kaye Wilson v Mackay Taxi Holdings Ltd T/A Mackay Whitsunday Taxis

[2014] FWC 2425

[2014] FWC 2425

FAIR WORK COMMISSION

DECISION

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

Ms Kaye Wilson
v
Mackay Taxi Holdings Ltd T/A Mackay Whitsunday Taxis
(U2013/9954)

COMMISSIONER SIMPSON BRISBANE, 16 APRIL 2014

Application for relief from unfair dismissal - Full Bench remitted unaddressed threshold matter under s.389(2) to member of Full Bench - whether Applicant could have been retrained for new role - Retraining in circumstances placed unreasonable burden on a small business - Application dismissed.

[1] This matter concerns an application under s.394 of the Fair Work Act 2009 (“the Act”) by Ms Kay Wilson (“the Applicant”) who alleges that the termination of her employment with Mackay Taxi Ltd T/A Mackay Whitsunday Taxis (“the Respondent”) was unfair in accordance with the definition contained within s.385 of the Act.

[2] The application was filed on 28 May 2013. The matter at first instance was heard before Commissioner Booth and a decision was issued 4 November 2013.  1 That decision was the subject of an appeal and the decision of the Full Bench on 12 February 2014 was to grant permission to appeal and uphold the appeal.2

[3] The Full Bench determined to remit to a member of the Full Bench the final determination of an unaddressed threshold matter under s.389(2) of the Act concerning whether it would have been reasonable in all of the circumstances for the Applicant to have been redeployed. I issued directions for the filing of material on the outstanding matter and listed the matter for hearing on 14 April 2014. At the hearing neither party sort to test by cross examination any of the additional material filed.

[4] In accordance with the Full Bench decision in this matter the outstanding question is whether the Applicant could have been redeployed into some other position within the Respondent. Within that broader question the Full Bench raised the necessity of considering the question of whether it would have been reasonable in the circumstances of this case for the Respondent to have provided the necessary training to the Applicant in order to enable her to assume the duties of the newly created qualified Book Keeper position.

[5] In a recent Full Bench decision in Technical and Further Education Commission T/A TAFE NSW v L. Pykett[2014] FWCFB 714 3 (“Re: Pykett”) the basis on which the Commission can reach a finding in relation to s.389(2) of the Act was considered. The Full Bench found as follows:

[35] As we have mentioned, the use of the past tense in the expression ‘would have been reasonable in all the circumstances for the person to be redeployed ...’ in section 389(2)(a) directs attention to the circumstances which pertained when the person was dismissed. As noted in Honeysett, [T]’he exclusion poses a hypothetical question which must be answered by reference to all of the relevant circumstances’.  The question is whether redeployment within the employer’s enterprise or an associated entity would have been reasonable at the time of dismissal. In answering that question the Full Bench in Honeysett observed that a number of matters are capable of being relevant:

“They include the nature of any available position, the qualifications required to perform the job, the employee’s skills, qualifications and experience, the location of the job in relation to the employee’s residence and the remuneration which is offered”. 

[36] [...] For the purposes of s.389 (2) the Commission must find, on the balance of probabilities, that there was a job or a position or other work within the employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employee. There must also be an appropriate evidentiary basis for such a finding. Such an interpretation is consistent with the ordinary and natural meaning of the words in the subsection; the Explanatory Memorandum and Full Bench authority. We acknowledge that the facts relevant to such a finding will usually be peculiarly within the knowledge of the employer respondent, not the dismissed employee. If an employer wishes to rely on the ‘genuine redundancy’ exclusion then it would ordinarily be expected to adduce evidence as to the following matters:

(i) that the employer no longer required the dismissed employee’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise;

(ii) whether there was any obligation in an applicable modern award or enterprise agreement to consult about the redundancy and whether the employer complied with that obligation; and

(iii) whether there was a job or a position or other work within the employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employer.

[37] The evidence in relation to (iii) would usually include canvassing the steps taken by the employer to identify other work which could be performed by the dismissed employee.

[38] As we have mentioned, we accept the respondent’s submissions as to the proper construction of s.389(2). But that is not the end of the matter. The difficulty for the respondent is that the Commissioner failed to make the requisite finding and for that reason the appeal must be upheld [...].

[6] The Full Bench went on to consider the relevant findings of the decision under appeal and went on to conclude:

[40] The Commissioner erroneously focussed on the inadequacy of the appellant’s redeployment policy and failed to make a finding that there was a job, a position or other work to which Ms Pykett could have been redeployed. Such a finding is a necessary step in reaching the conclusion that it would have been reasonable in all the circumstances for Ms Pykett to be redeployed within the appellant’s enterprise. The failure to make such a finding is an error which warrants correction on appeal. [2014] FWCFB 714.  4

Whether it would have been reasonable in all of the circumstances for the Applicant to have been redeployed (other than to the new Bookkeeper position),

[7] The Respondent relies on the initial and subsequent letters to the Applicant which included advice that should the Applicant’s position be made redundant, no other positions were currently available into which the Applicant could be moved.

[8] The Respondent relies on this fact, and also the fact that the Applicant had an opportunity to challenge the proposition that no other position was available but did not take it, both during consultation via the preliminary letter, and subsequently via the subsequent letter. This letter confirming the redundancy decision dated 24 April 2013 was submitted during the proceedings. In the letter the Respondent advised the Applicant that her position would be made redundant, and that consequently her employment would conclude. The relevant section of the letter reads:

“Also in keeping with our earlier correspondence, we have given consideration to whether another position is available which you may be moved into, and we have sought your input on that issue. No suitable position is available, and on that basis your employment with us must therefore conclude.”

[9] The Applicant has responded to this submission by challenging the proposition that she was unable to perform the new Bookkeeping position. The Applicant has also made submissions challenging the ability of the first person appointed to the new Bookkeeper role to perform the new role to a higher standard than she could have. The Applicant also asserted the new person would have required training to operate in the taxi industry, rendering that person no more qualified than the Applicant.

[10] The Applicant also pointed to the fact that the first person engaged did not remain in the role and a second person was employed, who also lacked experience in the taxi industry and would have required training.

[11] The Applicant’s argument appears to be that despite the other two persons engaged to perform the qualified bookkeeper role both holding qualifications that she did not, this would have been off-set by her experience in the industry as compared to their in-experience. This submission really goes to the matter which I will deal with below of whether it would have been reasonable in all of the circumstances to have re-deployed the Applicant into the qualified book keeper role despite her not holding the relevant qualification, and to have supported her in obtaining that qualification instead of advertising and filling the role with a qualified person. The Applicant has not identified another existing role.

[12] The Applicant has submitted that since her redundancy one female administration person has been upgraded from part time to full-time, the office trainee who was partly through her traineeship was kept on full time (at the end of her traineeship) and the company also sponsored a foreign taxi driver on a working visa who works part time in the office.

[13] The Applicant asserts that such increases in these three non-existent and/or only part time positions at the time of her dismissal could have been combined into one full time position for her.

[14] The Applicant submitted as follows:

“Whilst the Respondent determines there was no vacancy at the time of my dismissal, it certainly became obvious very shortly thereafter there was the need for additional administrative staff within the organisation, hence the positions referred to above.”

[15] The difficulty with this submission is the requirement for the position to exist and to be able to be identified at the time of termination as explained in Pykett. The Applicant’s submission goes to what alternative positions the Respondent could have and did later create, not what actually existed at the time of termination. There is no material to support a conclusion that a position existed at the time of dismissal as required.  5

[16] Having considered the submissions and available material I am satisfied on balance there was not another job or a position within the employer’s enterprise to which it would have been reasonable in all the circumstances to redeploy the Applicant. This finding excludes the new qualified bookkeeping role which I will consider separately below.

Whether it would have been reasonable in the circumstances for the Respondent to have been redeployed to the new Bookkeeper position.

[17] The second aspect of the matter remitted from the Full Bench includes consideration of whether it would have been reasonable for the Respondent to have provided training for the Applicant to have assumed the newly created bookkeeping role, which the Full Bench determined was a different role from that previously held by the Applicant. For completeness however it is not just the training issue that would need to be considered in determining the reasonableness of redeployment of the Applicant to the new bookkeeping role. As set out above in Ulan  6 consideration can include the qualifications required to perform the job, the employee’s skills, qualifications and experience, the location of the job in relation to the employee’s residence and the remuneration which is offered.

[18] It is clear that the Respondent decided to employ a qualified bookkeeper, for example a person with a Certificate IV which the Applicant did not possess.

[19] The Full Bench in Ulan 7commented generally that redeployment may be possible where the training requirement is reasonable:

[34] It may be appropriate to make some concluding remarks about the operation of s.389 (2). It is an essential part of the concept of redeployment under s.389(2)(a) that a redundant employee be placed in another job in the employer’s enterprise as an alternative to termination of employment. Of course the job must be suitable, in the sense that the employee should have the skills and competence required to perform it to the required standard either immediately or with a reasonable period of retraining.[...] (my emphasis added)

[20] The Applicant contends that the Respondent has previously paid for the training of other employees, and should have been prepared to pay for her to become qualified in the duties of the new position. The Respondent accepted that it had provided various short courses to various employees, including the Applicant.

[21] The Applicant said the majority of training provided by the Respondent in the past has been for the taxi industry specific computer software installed on the company’s computers as and where electronic changes were required within the system.

[22] According to the Applicant training afforded other members of staff by the Respondent included one staff member being funded by the Respondent on several occasions for significant training and travel to southern cities because her position was changed and upgraded to Operations / Fleet Manager and Training Officer.

[23] The Applicant gave examples of other cases where the Respondent has changed business contracts with Call Centre/Despatch Services companies, from Townsville Taxis to Gold Coast Taxis and on each occasion considerable retraining of staff and major administrative changes was instigated, and all staff were required to undertake varying amounts and types of retraining especially regarding operation of new or different (incar) taxi equipment. Such training was funded and provided either by the Respondent or these other taxi companies. The Applicant also said the Respondent has always provided driver training to all drivers in the district free of charge for some 60 plus drivers in the taxi district.

[24] The Applicant claimed to have had insufficient time to conduct her own investigations into RPL (Recognition of Prior Learning) or funding options over a period of days or weeks. The Applicant complained the Respondent insisted she conduct such an investigation in her lunch break, which meant she had to approach previous employers for work histories and then make discovery of possible RPL at TAFE in one half hour.

[25] In response to concerns raised about the cost of the training the Applicant referred to the Department of Industry: “Investing in Experience – Skills Recognition & Training” funding offered through TAFE colleges. The Applicant said amounts of up to $4400 per employee could be provided to the employer under this program, a quite significant amount the Respondent could have availed itself of for her study course.

[26] The Respondent maintained that to obtain the relevant qualifications required at a minimum, twelve months of study. The Applicant refutes this. The Applicant claims that the Respondent refused to consider that she may have been able to learn the new duties whilst performing her other duties with the support of the company accountants.

[27] The Applicant said that as the TAFE course is done online and externally at the students own pace there is no way to be specific in stating it would have taken 12 months. The Applicant claimed that she had been advised by a commercial professional that given her previous experience, with support she could have completed the course in 6 months or less. The Applicant also claims that she may have achieved RPL.

[28] The Respondent submits there is a significant difference between short-term training which is job-specific and conducted in-house, compared to a generic qualification requiring at least twelve months to complete, and being conducted via a tertiary institution. Further it was said that there is also a significant difference between training that is specifically related to the employer’s business, as opposed to a person obtaining a qualification which is highly transferrable.

[29] The Respondent has also submitted that given that these changes were being contemplated in March and April 2013, had the Applicant been prepared to undertake the necessary study, in all likelihood the study could not have commenced until the following year, and would lead to the Applicant obtaining the qualification towards the end of the following year, at best. In response the Applicant said this was conjecture as TAFE courses are deemed Vocational Education and Training, are available internally, externally and online whereby candidates can study at their own pace or study on campus on a full time basis.

[30] The Respondent said that it would not be reasonable to require it to hold off on a necessary structural change, in the hope that the Applicant may become qualified some considerable time later.

[31] The Respondent claimed that during the course of this matter, both parties have indicated that they were not prepared to pay the cost of the course fees. On that basis alone there was no prospect of the Applicant undertaking the required study, and therefore no prospect that the Applicant would attain the required skills or knowledge for the new position. The Applicant said she had never said she refused to fund the study, she had only requested that the Respondent do so. The Respondent contends that it would not have been reasonable in the circumstances to expect it to pay for the education of the Applicant.

[32] Having considered the material available I am satisfied that the circumstances of this case do not align with what was contemplated by the Full Bench in Re:Ulan when it stated “the employee should have the skills and competence required to perform it to the required standard either immediately or with a reasonable period of retraining...”.

[33] Even on the Applicants own best case there is a reasonable prospect that the Applicant will not hold the qualification attached to the new role for 6 months. I do not regard such a length of time as reasonable in all of the circumstances. Further while there was speculation that the Applicant may have been eligible for government funding to assist in meeting the costs of her undertaking the Certificate IV training, the fact is no such application had been made at the time of termination.

[34] I also accept the submission of the Respondent that there is a significant difference between an employer paying for a short course that is specific to a particular job and paying for a nominally 12 month Certificate IV TAFE Course which is transferrable.

[35] For the reasons set out above I am satisfied it was not unreasonable for the Respondent to have advertised for the new position in order to engage an employee who held the qualification the position required instead of redeploying the Applicant into the Bookkeeper position. I have also included in my consideration the fact that the Respondent is a small business employer. The kinds of accommodations the Applicant argues the Respondent should have been prepared to make in order to redeploy the Applicant would have placed an unreasonable burden on the Respondent being a small business. On the basis of my findings above, and in light of the Full Bench decision there is no jurisdiction to consider the application and it must be dismissed.

COMMISSIONER

 1   [2013] FWC 8634

 2   [2014] FWCFB 1043

 3   Technical and Further Education Commission T/A TAFE NSW v L. Pykett[2014] FWCFB 714

 4   [2014] FWCFB 714

 5   (Ulan Coal Mines Limited v Honeysett and others) [2010] FWAFB 7578 paragraph 28.

 6   (Ulan Coal Mines Limited v Honeysett and others) [2010] FWAFB 7578

 7   (Ulan Coal Mines Limited v Honeysett and others) [2010] FWAFB 7578

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