Ms Kym Ireland v Capricornia Newspapers Pty Ltd T/A the Morning Bulletin Rockhampton

[2015] FWC 5171

[2015] FWC 5171

FAIR WORK COMMISSION

DECISION

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

Ms Kym Ireland
v
Capricornia Newspapers Pty Ltd T/A The Morning Bulletin - Rockhampton
(U2015/35)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 31 JULY 2015

Summary: application for an unfair dismissal remedy – objection – s.385 – 389 – whether genuine redundancy – employer obligation to make out circumstance making for redundancy – objection dismissed – s.389(1)(a) not made out.

[1] This decision concerns an application by Ms Kym Marie Ireland under s.394 of the Fair Work Act 2009 (“the Act”). Ms Ireland seeks an unfair dismissal remedy in relation to her dismissal from Capricornia Newspapers Pty Ltd T/A The Morning Bulletin - Rockhampton (“the Company”) on 12 December 2014.

[2] The Company contends that Ms Ireland was dismissed as a result of redundancy, and objects to the substantive application being heard on the grounds of s.389 of the Act, which provides 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.

[3] On 12 December 2014, the employer provided the following (edited) correspondence to Ms Ireland:

“As you may be aware, APN, Australian Regional Media (the Company) has recently reviewed its operational requirements into the future. Following the review, the Company has identified that it is necessary to restructure the business, resulting in some positions becoming redundant. It has been identified that your position will become redundant, and unfortunately as a consequence, your employment will cease on 12 December 2014.

As discussed with you during a consultation meeting(s) conducted on 12 December 2014, the Company has taken steps to identify any suitable alternative employment in order to avoid the termination of your employment due to redundancy. It has been identified that there are no suitable alternative employment opportunities for you. [...]” (sic)

[4] Mr Craig Secombe, General Manager - Human Resources, gave evidence on behalf of the Company that Ms Ireland was employed for and primarily responsible for a special publication entitled Rocky Life, which was a free community newspaper distributed in Rockhampton.

[5] Mr Secombe held that Ms Ireland’s role was to be “the first point of contact for clients and [to] promote this specific publication to sales representatives.”

[6] Mr Secombe claimed that there was limited market acceptance of Rocky Life and in the context of the decline in revenues since 2013, the business case was prepared to cease the publication. The Company approved the cessation of the publication on or around 12 December 2014. The decision, Mr Secombe explained, was a purely financial decision taken in the context of the economic and market place changes affecting newspapers generally.

[7] It was argued therefore that the requirements of s.389(1)(a) of the Act were met.

[8] Mr Secombe also contended that Ms Ireland had been employed under a contract of employment signed on 2 May 2013, and was not covered by either a modern award or an enterprise agreement under the Act. Therefore, the Company was not obliged to exercise a particular prescribed consultation procedure in the context of such instruments for the purposes of s.389(1)(b) of the Act. Mr Secombe maintained nonetheless that the Company had afforded consultation to Ms Ireland, though not in a procedurally rich context of a standardised award or agreement clause.

[9] The Company also contends for the purposes of s.389(2) of the Act that it undertook an exercise to determine any other suitable roles that may be available based on Ms Ireland’s expertise, skill and knowledge. Mr Secombe claimed that at the time the decision was conveyed to Ms Ireland there had been no other suitable alternative position identified to which Ms Ireland could have reasonably been redeployed.

[10] Mr Secombe also claimed that the Company had no reason to dismiss Ms Ireland from its employment for any other reason such as behaviour or poor performance. That is, Ms Ireland was dismissed from her employment exclusively for reason of her position having become redundant.

[11] Ms Ireland complains that the position which was declared redundant was not the position that she held with the employer. Ms Ireland maintains that her employment with the Company on 6 May 2013 was on the basis of her performing the role as a Business Development Executive (New Business) for the Morning Bulletin. Ms Ireland’s contract of employment (at Schedule, Item 1) stipulates that her position is as a Business Development Executive.

[12] At the end of October 2013, Ms Ireland claims that her position was changed to that of a Key Account Executive for the Morning Bulletin. The change in role in this regard was conveyed to Ms Ireland by Mr Jens Kreaft (the Advertising Manager).

[13] In November 2013, Ms Ireland claimed she met with Mr Kreaft who, following a discussion with her, appointed her as a “champion” (or “care-taker”) for the Rocky Life publication. That publication was launched on 9 April 2014 (and replaced a previous free community newspaper called the Rocky Mirror).

[14] Ms Ireland explained that she was invited into the office of the General Manager - Mr Phill LePetit - late in the afternoon of 12 December 2014. Mr LePetit then informed Ms Ireland that “Rocky Life has not been a success and I have to inform you as of now you have been made redundant [...].”

[15] Ms Ireland complained that the communication of her redundancy did not constitute consultation about the redundancy.

[16] Ms Ireland also complained that she was never employed to be primarily responsible for the Rocky Life publication, and at the time of her dismissal had been employed as a Key Account Executive for the Morning Bulletin. Ms Ireland complained, generally, that she could not have been made redundant from a position which she had not been employed to perform.

[17] The role as a “champion” for Rocky Life was no more than an informal position held by Ms Ireland to support the community newspaper. Other employees are champions for other publications but are not principally employed to perform duties in respect of those publications.

[18] Ms Ireland brought a number of witnesses to give support to the application. These witnesses generally supported Ms Ireland’s claims and provided what in effect were character and work references. These witnesses were not called for cross examination.

Consideration

[19] For purposes of s.389(1)(a) of the Act, it is necessary to determine whether the employer no longer required Ms Ireland’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise.

[20] Mr Secombe gave evidence that he was advised (in his role as General Manager - Human Resources) by a member (or members) of the Senior Executive Team of the employer (relevantly comprising the General Manager of the Morning Bulletin, the Regional General Manager and the Operations Director) that Ms Ireland’s position was redundant, and that he was therefore required to assist in facilitating the relevant process to effect that end.

[21] Mr Secombe was unable himself to give evidence from within his direct knowledge of the circumstance that had arisen that caused the employer to conclude that Ms Ireland’s position was redundant. Mr Secombe was not a part of the chain of decision making, he was not involved in or made privy to the discussions and deliberations of the Senior Executive Team, and he was not personally exposed to the internal deliberations that led to the conclusion that the employer could no longer commercially sustain Ms Ireland’s position.

[22] Further, Mr Secombe himself did not have direct knowledge of the relationship between Ms Ireland’s role as a Business Development Executive or (in the local vernacular) Key Account Executive for the Morning Bulletin, and her responsibilities in respect of Rocky Life. Mr Secombe was unable, therefore, to lead evidence to the effect that the closure of Rocky Life reasonably caused Ms Ireland’s position to become redundant. Mr Secombe was left with efforts to rely on concessions by Ms Ireland as to the time spent on servicing the needs of the Morning Bulletin as opposed to Rocky Life in order to identify her position as such.

[23] The business imperative and the operational circumstances making for a redundancy will reside in the direct knowledge of the employer. Sometimes this will be evidenced through sworn and tested evidence about the changes in market conditions, which may be supplemented by financial materials (but not always), or by direct evidence about business objectives that require reorganising operations, changing employment and skills profiles, or creating efficiencies (and the like).

[24] Further, the employer will be placed to provide direct evidence about the nature of the affected employee’s job and why it is no longer required to be performed (or how its particular component tasks are to be re-distributed to achieve savings and efficiencies).

[25] But in this particular case, I am left only with the assertions of Mr Secombe as to what he was told in broad terms by other persons (who may or may not have had direct knowledge themselves of the basis of the redundancy decision). Mr Secombe was unable to give direct evidence about whether more than one person was made redundant and, if so, were these decisions part of the same operational deliberations of the employer.

[26] Without more, I cannot conclude that Ms Ireland’s position was made redundant. It may be the case that the position was no longer required to be performed as it was a marginal position relying on its ancillary function to support Rocky Life in some limited capacity. But the employer must provide a standard of proof about such matters, and that has not been met in this case.

[27] The employer, therefore, has not made out its case in respect of s.389(1)(a) of the Act. As a consequence, it is not necessary for me to consider s.389(1)(b) of the Act (which is hardly relevant in any event given Ms Ireland was on a common law contract of employment) or s.389(2) of the Act.

Conclusion

[28] Because it has not met the evidentiary test in relation to s.389(1)(a) of the Act, I have been unable to conclude that Ms Ireland’s position was made redundant (as a fact made out on the balance of probability). The employer’s objection must fail, as a consequence, and the defence (that Ms Ireland was made “genuinely redundant” for the particular purpose of s.389 of the Act) against the substantive claim is not available.

[29] The application by Ms Ireland under s.394 of the Act will be listed for hearing.

[30] This is not to say, however, that the employer cannot argue in the substantive hearing that Ms Ireland’s position was made redundant: it can still so argue on a different evidentiary basis (but not within the context of s.389 of the Act).

[31] The parties are at liberty to discuss the prospect of settlement between themselves in the interim. Directions for the substantive hearing will issue shortly.

SENIOR DEPUTY PRESIDENT

Appearances:

Ms J. Madden, solicitor, for the Applicant

Mr C. Secombe, of the Respondent

Hearing details:

By telephone

2015

28 July

Printed by authority of the Commonwealth Government Printer

<Price code C, PR569941>