Ms Linda Makin McGovern v The Cubbyhouse @ Kellyville Pty Ltd
[2010] FWA 2411
•1 APRIL 2010
[2010] FWA 2411 |
|
DECISION |
Fair Work Act 2009
s 394 - Application for unfair dismissal remedy
Ms Linda Makin McGovern
v
The Cubbyhouse @ Kellyville Pty Ltd
(U2009/12508)
DEPUTY PRESIDENT SAMS | SYDNEY, 1 APRIL 2010 |
Application for unfair dismissal remedy.
[1] On 25 September 2009, Ms Linda Makin McGovern (‘the applicant’) filed an application, pursuant to s 394 of the Fair Work Act 2009 (‘the Act’), seeking orders from Fair Work Australia (FWA) for a remedy from her alleged unfair dismissal by The Cubbyhouse @ Kellyville Pty Ltd (‘the respondent’) on 28 August 2009. The respondent is one of three childcare centres owned and operated by Mrs Joan Stone, and whose Head Office is located at Hoyle Avenue, Castle Hill, New South Wales. The applicant was employed from 20 May 2004, as an administration officer at the Kellyville Centre, and her termination of employment was said to have occurred as a result of her position being made redundant and/or an alternative offer of re-employment at the respondent’s Head Office was unacceptable as it was not comparable employment. The applicant claimed therefore, that she had been constructively dismissed.
[2] The respondent strenuously maintained that the applicant resigned from her employment and relies on a letter received from her on or about 17 September 2009, in the following terms:
On Friday 28th of August I attended my place of work to find that I was unable to log into the company systems in order to conduct my normal work duties.
I was subsequently advised by my colleagues that my access to these systems was denied by order of the company.
Furthermore, I was made aware that there was e-mail correspondence sent to several of my colleagues on Thursday 27th August, indicating that my access should be denied.
This e-mail correspondence was not sent to me.
For several weeks I have been seeking clarification regarding the future of my employment, specifically that it appeared that a role similar to that which I have been performing has been advertised publicly.
The response I have received is that “my role” is not being advertised and, more pertinently, there has been an assurance that my role would continue.
Clearly, as of Friday 28th August, that is not the case.
On Monday 31st August I attended a meeting regarding my employment status and quite clearly put to you that, by the actions of your company, I was dismissed from my role on that Friday 28th August.
In that meeting you and your colleague, Chris Clifford, outlined your vision for the future of the company(ies) and my role in it.
As was painstakingly pointed out, whether or not your vision for the future of the company has merit is something for you to determine, you unfortunately neglected to formalize how that would affect me as an employee.
In that meeting you discussed a new role for me to consider and the meeting concluded with a commitment that I would have a job description put forward for my consideration the following day.
There was no ‘new offer’ or job description put to me the following day with ‘lack of time’ and ‘other priorities’ being cited as a reason for a (sic) delay.
The job description was provided for my consideration on Wednesday 2nd September.
That job description does not match the conversation held and, on any basis is incongruent with the role I have performed for the last five and a half years and, moreover, is unacceptable to me.
Your assertion that ‘Chris probably gave you an offer that he knew you would refuse’ does nothing to give me comfort and, indeed, merely proves my point, that is, there was an intention to remove me from my current role and, also, permanently as an employee.
Your request to ‘turn up at head office and we’ll work something out’ illustrates that you do not appear to take this matter seriously despite me bringing in representation from Melbourne in an attempt to illustrate the effect this is having upon me.
I appreciate that you have subsequently sent me an ‘amended’ job offer but, again, along with related discussions, this refers to a role which involves work during hours which I have consistently stated are unsuitable.
Furthermore, the role is completely different to the role which I have been performing and can only be viewed as being a new role and not a continuing one.
At the same time, I have, even as recently as Monday 14th September been told not to attend Cubbyhouse Kellyville, my usual place of work.
I have acted in good faith for the last two weeks or more, in the hope that there would be a suitable outcome.
Likewise, your apology for ‘lack of process’ regarding the events of Friday 28th August, was heard in good faith.
It is increasingly apparent that that good faith is one sided.
It is beyond me why I could not be simply told in advance that my job would not be available in the near future.
That way I could have either been offered a new role to consider or, alternatively, offered redundancy.
The only assumption I can make since then is that you have attempted to offer me something which would provoke my resignation.
I haven’t resigned, I have been dismissed.
My reasoning for this assessment of my position includes, but is not limited to, the following;
1. Despite my requests for clarification, I received assurances regarding my job until, as it transpired, a replacement strategy was implemented.
2. Without notice, my access to systems which enable (sic) me to perform my role, was removed.
3. There was correspondence to my colleagues outlining as such, but no such correspondence was sent to me.
4. I have subsequently been told that I am not to perform the role.
5. I have been told not to attend my place of work.
6. I have been given a job description which relates to a role which I am unable to accept and one which, by your own admission, was designed to induce my refusal.
The fact is, I was dismissed on Friday 28th August.
I have advice to that effect.
Accordingly I request the following payments be deposited to my bank account by close of business Friday 18th September.
1. Annual leave entitlements of (??? x $30.00)
2. Redundancy allocation of 14 weeks pay as per the award (??? x $30.00)
3. Accrued long service entitlements (pro rata): Currently 5.72 weeks (??? x $30.00)
4. Notice entitlements: 4 weeks pay (??? x $30.00)
Total: (??? x $30.00)
Please, also, provide a statement outlining the payment of my statutory superannuation entitlements. For the avoidance of doubt, I do not wish to receive an explanation of the company’s policy, namely quarterly payments, I wish to receive confirmation that those payments are current and up to date.
This confirmation is readily available to you online via the ATO portal.
I also require copies of the Group Certificates for 2007, 2008, 2009.
Failure to provide as such will leave me with no choice but to pass the matter to my lawyers who will immediately make an application for costs as well as pursue a potential remedy of damages.
Yours sincerely
Linda Makin
[3] Despite the applicant’s assertions above, the respondent maintained that the applicant’s resignation was not a dismissal - constructive or otherwise. Therefore, FWA had no jurisdiction to deal with the matter and the application should be dismissed for want of jurisdiction. The matter was listed for phone conciliation on 20 October 2009. However, this conference proved unsuccessful. The matter was also subject to interlocutory proceedings before his Honour Senior Deputy President Watson in January 2010, concerning orders for the attendance of a person (Ms Bianca Farrar) at FWA and orders for the production of documents. As the matter progressed, Ms Farrar, who provided a statement in the proceedings (exhibit 3), did not attend the Tribunal for cross-examination. Documents were produced on 12 February 2010, in response to the order for production, but were subsequently not relied upon.
[4] The application was listed for hearing on 12 February 2010. It seemed readily apparent that the facts and circumstances leading up to, and surrounding the applicant’s alleged dismissal, formed an intrinsic part of the necessary facts and circumstances relevant to deciding the respondent’s jurisdictional challenge earlier summarised. Nevertheless, Mr P Rochfort (Agent), appearing for the respondent, submitted that if the Tribunal found it had jurisdiction to entertain the application, the respondent would wish to be further heard as to whether the alleged dismissal was ‘harsh, unreasonable or unjust’ (see s 387) and, if so, what remedy should FWA be inclined to order (see s 392). As will be seen later, such a course will be found to be unnecessary.
[5] The applicant was represented by her former husband, Mr Stephen McGovern, who also provided a statement in support of the applicant’s case (exhibit 2). Notwithstanding Mr McGovern’s obvious limitations in conducting his ex-wife’s case, I am satisfied that his conduct during the proceedings was such that all of the relevant aspects of the applicant’s case were advanced through the evidence and his submissions. I am further satisfied that he understood the legal issues in this case relevant to the principles of constructive dismissal and the onus the applicant bears in that regard; although he obviously put no authorities before the Tribunal to support the applicant’s case. However, neither did Mr Rochfort. Nevertheless, I shall refer later to some of the authorities which have dealt with the principles of what constitutes a genuine redundancy and a constructive dismissal.
THE EVIDENCE
[6] The applicant’s version of events was outlined in her statement, the letter referred to at par 2 and in her oral evidence. The applicant described her duties at the Centre as primarily that of accounts receivable, but also included:
o opening of the Centre at 7:00am each day
o all Duties involved with the operation of the QikKids Childcare accounting program, including CCMS, billing of fees, new enrolments etc
o arranging for extra staff and replacing absent staff
o rostering of all staff for the Centre
o any duties requested by the Authorised Supervisor
[7] The applicant said that in around June of 2009 she became aware that there had been discussions at a Parents’ Committee Meeting of a new role of Director of First Impressions (DOFI). As she believed this role would affect her duties, she made repeated requests to Mrs Stone about her position. Mrs Stone had assured her that her job was safe and her employment would not be affected.
[8] The applicant said that on 23 July 2009, she received an email from Mr Chris Clifford, the respondent’s Information Technology (IT) consultant, advising that he would like to meet with her to discuss ‘a possible job opportunity’. However the meeting did not take place.
[9] On 28 August 2009, she was denied access to the Centre’s Database, QikKids. She contacted the Technical Department and a Ms Tamara Dunn told her she had no knowledge of any restrictions on her access to the computer. When the applicant rang Mrs Stone to find out what was happening, Mrs Stone expressed surprise and said that Mr Clifford was supposed to have called her the night before. Mrs Stone also said it was the respondent’s intention to ‘move everything to Head Office’ and that she should have been aware of it. The applicant told Mrs Stone that she had no knowledge of such a change in policy, nor had anyone discussed it with her.
[10] At around 9:00am, when the Centre Manager, Ms Bianca Farrar arrived, the applicant told her what had happened. Ms Farrar contacted Head Office and was told of an email from Mr Clifford which had been circulated to other staff and which stated:
“Can you please arrange to remove Linda’s privileges for entering data into Qik Kids. Can you also please take over the management of the accounts immediately. As discussed, Linda is doing other work on reviewing rosters for Joan.”
Ms Farrar emailed Mr Clifford and expressed disappointment with the process and added that she was ‘of course fully aware of Linda not continuing here’. The applicant said on the same day an email was sent (which she did not receive) as follows:
“Can you please complete next week at Kellyville as the office will not be ready until late next week. I will contact you early next week to arrange a time for you at Castle Hill next week.”
[11] The applicant said she had no understanding of what was expected of her, even though a decision seemed to have been made several months beforehand. Mrs Stone asked her to come over to discuss it after her Monday shift, 31 August 2009. The meeting involved the applicant, her ex-husband, Mrs Stone and Mr Clifford. The applicant said she expressed dismay that her job had been suddenly taken away from her, without any notice, and with no alternative in place. Mr Clifford outlined the business reasons for the changes. Mrs Stone stated that she and the applicant had a good relationship, both personally and professionally, and she wished it to continue. While the applicant saw some merit in the reasons for the decision, the fact was her job no longer was in place and she had nowhere to go. She said that Mr Clifford and Mrs Stone accepted that the situation could have been handled differently. Mr McGovern had said that one of two options should have been presented to the applicant – either make her redundant or offer her another job which was acceptable to her and which would need to be commensurate with her current conditions, specifically the hours of work. Mr Clifford then stated that Mrs Stone was very keen to continue working with her and he would have a proposal for her that evening. (It was not forthcoming.) The applicant reiterated that she did not want to be difficult or pursue ‘unwarranted legal recourse’ she just wanted another suitable role or be made redundant.
[12] The applicant received a job description on Wednesday, 2 September 2009. In a covering email, Mr Clifford said:
“The key thing I have left off at this stage is hours of work as I will need to discuss your exact times available and how we can work this through.”
The applicant claimed that the job description bore no resemblance to her previous role and did make reference to hours – set up rooms 7:00am – 9:00am, collapse rooms 3:00pm – 6:00pm and a third shift 1:00pm – 2:00pm. This meant 11 hours over three shifts. As she picked up her son from school at 3:15pm, these hours were unacceptable to her. She told Mr Clifford and Mrs Stone the next day:
“Thanks for the details regarding the new job offer. For reasons discussed on Monday I believe that the Job Description is something I wish to decline. I will contact you forthwith regarding my employment status once I have received the relevant advice. I would appreciate if you could advise me of my outstanding entitlements including a superannuation statement.”
[13] On Friday, 4 September 2009, Mrs Stone replied as follows:
“OK – can you now email me the roster as it was last week + for next week to come – leaving out of course the lunch breaks – have you got the girls working a longer day then?
I also can’t find the 94.4% + the 94% occupancy emails you sent me for the last couple of times – just need those again to let Joanne check that all casual days were billed – she only has 90% - we must have some parents not billed then.
With the hours of the new job, it will be what you are working now or more if you can spare the time any days then as you know Declan is OK (in the future) to come back here any afternoon, or got (sic) out with you to a centres (sic) after you have picked him up from William Clarke, then that is all I require. I would say Chris included the longer hours to give you a chance to knock them back, but at least they are in there if you want more work.
I can also offer you a Cert 4 in Accounting if you want to pursue that career as well.
Let me know what you are thinking, as I really want to work with you as we get along so well.”
[14] Mrs Stone called the applicant on Tuesday, 8 September 2009. The applicant said she could not accept the new role and explained why. The applicant said that Mrs Stone had told her she would not be required the following Monday. Ms Farrar was present during this conversation. The applicant said that Ms Farrar told her she knew it was the Company’s position (that she no longer be employed).
[15] The applicant was off work for the remainder of the week (two days caring for her ill son and two days of leave Friday, 11 and Monday, 14 September 2009). The applicant said she sent an email to Ms Farrar confirming her absence and requesting that Mrs Stone confirm her cessation of employment. Ms Farrar told her Mrs Stone agreed to do so and she asked for her keys to the Centre.
[16] On 9 September 2009, Mrs Stone wrote again to the applicant in the following terms:
“I am sorry to learn that you would not consider the new upgraded role at Head Office – I had now only received the Job Description that had been forwarded to you by Chris previously – this was sent to you without my having amended it in line with our discussions on what I need you to do in this role, and the hours to suit you, based on your Parenting commitments with Declan, which I fully understand as you know.
I have now amended the Job Description to what will suit you, in the hope that you will reconsider your decision to leave my Company.
I also offer again to you, the chance to embark on further training in your chosen field of a Degree, Diploma or Certificate IV in Accounting and your fees would be met by my Company, in return for a contract to work for the equivalent years to what you study, in my Company.
It has become necessary as you know, to re-structure our staffing across all centres and to maximise the help in this area we can give to the Authorised Supervisors – the only way we see we can do this is to have you based at Head Office carrying out the role across all LDCare Centres, closely monitoring centres at 15 minute intervals and sending staff to other duties or have them sign off for the day, to ensure the centre staffing budget costs are maintained – just as you are currently doing at our Kellyville Centre.
We have now re-structured to bring the task of all invoicing, collection and receipting of Parent fees to a centralised Head Office, and are now further re-structuring to have the Authorised Supervisor and Assistant Authorised Supervisor at Kellyville carry out the Reception role either end of the day to minimise staffing costs. Hence we are offering you to re-locate to our Head Office to continue your role in the staffing monitoring, as we value your services and knowledge in this field. Your basic terms and conditions of employment will remain unaltered, together with full continuity of your service. Moreover, the change in your work location does not constitute any significant difference for you in terms of the distance for you to travel to or from work, as this is minimal.
Please give this offer earnest consideration, as I value your services and knowledge in the field and the input you are able to make to my Company, and wish for you to continue working alongside me for many years to come.”
[17] The applicant said that the second job description was essentially the same as the last job description. The new hours only had a 45 minute reduction in the afternoon shift. Mrs Stone asked for the applicant’s response by 11 September 2009, and she replied declining the offer the same day.
[18] The applicant sent her letter (see par 2) and Mr Clifford responded refusing to pay redundancy. He said:
As stated at the meeting on 31st August, Joan Stone provided you with an option to “pick and choose” the hours as indicated in the job description that best suited your available times and location. As you were only available on mornings at Kellyville, we were quite happy for you to continue on in mornings at Head Office. However, Joan did also mention that if you wanted the additional hours in the afternoon, we could set you up with remote access from home rather than employ someone else for the afternoon function, something that could not be offered previously due to the physical location at Kellyville. This way you would have the benefit of additional hours with the ability to work from home for those hours if you so chose, an improvement/increase option on the hours you were previously performing.
…
This rejection of the offer to take on the role at Castle Hill on 3rd September, 2009, was clear and precise. As a result, Joan contacted you to discuss reasons, at which time you indicated that one of the main reasons you did not want to work at Castle Hill is that you did not like me (Chris Clifford). If this is your reason, then regardless of the merits of this decision, the confirmation to resign was accepted. Another reason was that you did not want to work morning and afternoon, which was a moot point given we had already discussed this at the 31st August meeting, and for which a simple question to me in email or via the phone would have reconfirmed the option for morning or morning/afternoon.
[19] The applicant believed that the job offer was not fair and reasonable. It contained unacceptable hours and was not similar to her previous role. She denied resigning and said she was dismissed on 28 August 2009. She then said:
“Until that point;
1. I had been employed for 5 and a half years.
2. I had questioned the future of my employment and had that future assured.
3. I had questioned whether any new roles or re-structure would cause a change to my employment and was met with denial.
4. I was rendered unable to perform my normal duties due to a policy of which I was not notified, but my colleagues were.
5. I had no alternative role in place when my existing role was removed.
6. Promises to provide me with the opportunity to consider a new role were either delayed or not fulfilled.
7. The new role which eventually was offered to me did not match my existing role in terms of fundamental conditions, namely, the hours of work.
8. The new role offered to me bore no resemblance to my current employment.
9. I continued to work at my place of work, in good faith, while the new ole was established.
10. When I confirmed that I was unable to perform the job description and thereby was unable to accept the new role, I was summarily dismissed.
Having been summarily dismissed;
1. I was subsequently contacted with an amended role on the basis that my employer was not aware of the role which I had previously been offered and which I had declined.
2. The amended offer, subsequent to my dismissal, was still wholly incompatible with my previous employment and my capacity to fulfil that role.”
[20] In oral evidence, the applicant accepted that over a two month period she had inquired of Mrs Stone as to her future role and Mrs Stone had assured her everything would be fine. She took that to mean that nothing was to change in respect to her job at the Cubbyhouse @ Kellyville. She had also asked her supervisor, Ms Farrar, and other people what was happening, but they knew nothing.
[21] The applicant insisted that it was not until 31 August 2009, that she was told that the respondent’s administration was to move to Head Office. However, in the statement of Ms Farrar she had said she had been fully aware ‘Linda (the applicant) would not be continuing on here at some stage’. The applicant said she knew the functions of her job were moving to Head Office, but that was not what the job became. She denied that she knew, prior to 31 August 2009, that she would also be moving to Head Office. She said her job was taken away from her and she denied it was transferred. She said her computer access was switched off on 28 August, without her knowledge, and without any warning from Mrs Stone, Mr Clifford or Ms Farrar.
[22] The applicant agreed she was offered a position at Head Office and that she was not happy to go there and work with Mr Clifford. She did not know if her job was made redundant, but the position she had at Kellyville most certainly had been. She said she refused the job at Head Office because the hours were unacceptable. She accepted that the employer wanted someone available in the mornings and evenings, and she had only ever worked the mornings. The applicant agreed that the new position included her old functions which had been transferred and some additional functions added.
[23] The applicant conceded that she had been given a job description with certain hours and that Mrs Stone had said she could pick the hours she wanted. However, Mrs Stone then sent her a job description with virtually the same hours as the earlier one. The applicant had made it clear she could not work in the afternoons. She agreed that Mrs Stone told her she could bring her son to the office in the afternoons. She said she ‘was not going to be bullied into taking a position I don’t want’. Nevertheless, the applicant accepted that Mrs Stone was prepared to offer her concessions, including bringing her son in and further education. She denied this was an upgrade of her role and could not understand, if Mrs Stone wanted her to stay, why she gave her a second job description with unacceptable hours.
[24] The applicant acknowledged that it made sense to centralise the accounting functions for all three childcare facilities. However, she did not resign – rather, she would not accept Mr Clifford’s or Mrs Stone’s job proposals. She denied that Mrs Stone had been prepared to accommodate any hours she had nominated. The applicant conceded that she had another job - making dress alterations - which she did during the day and on weekends. She claimed that she had specifically spelt out to Management the hours she was available and she was not available after 3:00pm. She acknowledged that in an email, Mrs Stone had made it quite clear that she could nominate the hours she could work. However, the job description did not reflect that undertaking.
[25] Mr Stephen Vincent McGovern, the applicant’s ex-husband, provided a statement and gave oral evidence. Much of his written testimony concerned what his former wife had told him. However, he had attended the meeting with the applicant and the respondent on 31 August 2009. Mr McGovern said that the applicant had asked him to attend the meeting to provide support, because she thought her employment was in danger. She was concerned that changes to the business would affect her employment and her requests for further information had been met with denial or avoidance. She had told him that access to the computer had been denied to her and she was unable to carry out her duties. Prior to the meeting, the applicant told him:
1. She had felt, for some time, that there were potential changes in the business which may leave her without a job.
2. She had asked Joan Stone to clarify her position but it had been ‘brushed aside’.
3. She was supposed to have a meeting with Mr Clifford and had received confirmation as such but that meeting never materialized.
4. She had arrived at work the previous Friday to find that she had restricted access to the accounts programme and the database.
5. There had been an e-mail circulated explaining that her access should be removed but that she had been, in her opinion, intentionally left off the e-mail.
6. Since then, some of her colleagues had been aware that ‘this had been coming for some time’.
7. She had been asked to attend Head Office after that morning for a meeting with Joan Stone and Mr Clifford.
[26] Mr McGovern said that at the meeting, the applicant had explained how she had been worried about her job and had felt completely destabilised. Mrs Stone had said that the applicant would always be taken care of and that she personally wanted her to work at Head Office. The applicant asked why no one had been prepared to talk to her and why a scheduled meeting had been cancelled. Mr Clifford conceded that this was his error and he then explained the restructure of the business. Mr McGovern believed that Mr Clifford had neglected to attend to his obligations to an employee. The applicant said she had two major concerns about the new role; firstly, she might be required to conduct promotional work in shopping centres, and secondly, the proposed hours were unacceptable. Mr McGovern said Mr Clifford explained that Mrs Stone was very keen to continue working with the applicant and valued her as an employee. He apologised for the lack of process as it had not been the respondent’s intention.
[27] Mr McGovern stated that because the applicant’s current role ceased to exist that there was an obligation on the respondent to either present her with an acceptable alternative role, or make her redundant. The applicant had been badly let down and she still did not know where she stood. Mr McGovern said that both Mr Clifford and Mrs Stone conceded that the matter could have been handled more appropriately. Mr Clifford explained that the new role would not have suited her ‘analytical’ personality and that Mrs Stone had other duties for her, including as her ‘right hand man’ and her personal assistant. Mr McGovern said the meeting became conciliatory with all parties agreeing that the two issues of concern would be addressed. Mr Clifford agreed to provide a job description that day. The applicant would attend Kellyville and provide assistance ‘subject to the new role being created’.
[28] Mr McGovern said the applicant updated him regularly that week about the continued unsuitability of the hours and she was ‘hugely distressed’ by the situation. Mr McGovern believed that Mrs Stone’s relationship with the applicant may have ‘blurred the lines’ regarding her obligation as an employer and that she may have taken the applicant for granted.
[29] In cross-examination, Mr McGovern said that much of his statement concerned conversations he had with his ex-wife, but he had also attended the meeting on 31 August 2009. He had agreed to come up from Melbourne and assist her because she was very anxious about her employment.
[30] Mr McGovern said that he ‘believed her current role had ceased to exist because she had been denied access to an account software program known as QuikKids’. However, she had not told him the program had been transferred to Head Office. He agreed she probably could have performed that role at Head Office. However, Mr McGovern said that during the 31 August meeting, she had been told this role, which was 50% of her duties, would not be given to her. He denied that this was not the truth and denied that the Company welcomed her and invited her to continue that role at Head Office. Mr McGovern accepted that at the meeting, Mrs Stone had expressly said she wanted to continue working with the applicant. However, he denied that Mrs Stone said that her role was to be performed elsewhere.
[31] Ms Bianca Farrar was the applicant’s direct supervisor. There was some confusion as to the nature of Ms Farrar’s evidence. The applicant claimed Ms Farrar would support her version of events. However, the applicant required a summons to be issued for Ms Farrar’s attendance (which she did not comply with). Mr Rochfort was content for Ms Farrar’s statement to be tendered into evidence, without the requirement for her to be cross-examined; presumably because her statement contained nothing which damaged his client’s case.
[32] In her statement, Ms Farrar said that she was standing beside the applicant when she was on the phone to the respondent on 14 September 2009, but could not hear anything said by the respondent. Ms Farrar said she had been advised, the day before, of staff changes and was requested to attend to the necessary paperwork. She then requested the respondent provide the documentation directly to the applicant.
[33] Ms Farrar said she had known the applicant could not work afternoons due to family commitments. She had suggested the applicant discuss other alternative suitable work arrangements with the respondent. She had told the applicant that the respondent appreciated her skills in rostering and staffing and considered her as an asset to the Company.
[34] Mr Chris Clifford was unable to attend the hearing for medical reasons. Consequently, Mr Rochfort withdrew his statement filed in the proceedings.
[35] Mrs Joan Elizabeth Stone is the respondent’s Owner and Managing Director. Mrs Stone said that the respondent wanted to have a contact person with parents in the morning and afternoons and as the applicant was not available in the afternoons, alternatives needed to be considered. However, she said that another role was to be created for the applicant at Head Office, which would utilise her valued skills in rostering. Mrs Stone said she began discussion with the applicant in July or August 2009, about her taking this role. On each occasion, Mrs Stone assured her that her job was secure. Initially, the applicant gave every indication that she agreed with the proposal, but said she did not want to work with Mr Clifford. Mrs Stone had explained that he was hardly ever there and this appeared to appease her concerns.
[36] Mrs Stone said the administrative arrangements for the move to Head Office were completed on 28 August 2009, and the database was transferred. She sent an email to the applicant requesting she attend Head Office on Monday, 31 August, with a view to formalising details of her duties. These included continuing with staffing, rostering and account billings and receipts. This work was to be centralised across the three Centres.
[37] Mrs Stone referred to the meeting on 31 August 2009, in which she described Mr McGovern as having adopted a dominant role, not a supportive role. Mrs Stone explained the reasons for the transfer and that the applicant had been given plenty of notice of what was to happen. Mrs Stone apologised for not handling the matter personally, but believed the applicant had agreed with the proposals. She was to remain very much part of what the respondent was trying to do. Mr McGovern said the applicant’s job ceased to exist on 28 August and she should either be made redundant, or offered a job suitable to her. Mrs Stone denied the position was redundant as it was virtually identical to her previous position. Mrs Stone explained that despite the need for a person in the afternoons, this position would be available as the applicant’s son got older and may have other carer options. Her son could come to the office if this suited. She offered the applicant further training in accounting. Mrs Stone said she told the applicant she was happy to have her work in the mornings so as to allow her to attend her dressmaking clients in the afternoon. Mr Clifford apologised for not providing a new job description and when he did, it was for the whole of the job. The applicant could choose what hours she wanted and the respondent would have another person to perform the balance of the job. Mrs Stone said she was anxious to have the applicant continue. She told her again her job was not redundant. Mrs Stone believed the applicant and Mr McGovern were ‘angling’ for a redundancy payout in order to accommodate her dressmaking work and had used her son as an excuse.
[38] Mrs Stone said, at no time, did she dismiss the applicant and, in fact, prepared a new job description sent to her on 9 September 2009. Mrs Stone concluded her email with:
“Please give this offer earnest consideration, as I value your services and knowledge in the field and the input you are able to make to my Company, and wish for you to continue working alongside me for many years to come.”
She had advised the applicant she could have any hours which fitted her requirements and told her to come to Head Office to work it out. As she heard nothing from her, she had assumed she had taken action to terminate her own employment; effectively, resigning. Mrs Stone said she did not respond to the applicant’s letter of 17 September 2009, because she believed the applicant was pursuing her own agenda and exploiting the respondent’s business needs.
[39] Mrs Stone responded to Mr McGovern’s statement that the applicant ‘was not provided with an opportunity to undertake a future role with the Company’ by saying, to the contrary, that not only was she provided with such an opportunity, but she was offered opportunities to improve and advance in her role. Mrs Stone was personally dismayed by her refusal to do so. She had let herself down and was receiving either, very poor advice, or acting opportunistically.
[40] In examination in chief, Mrs Stone was asked and replied:
“Can you confirm that at all times you wished Ms Makin-McGovern to stay in employment with you?---At all times. I even tried to bend over backwards to have her stay and I still would have her back today. Because we personally got along very well and I liked the way she thought about things, I liked her business acumen and the way that she dealt with rostering and I wanted her to do that across our companies, and hence the move to head office was offered to do the same role but for expanding it as she could take on the role as her son got older, and hence that's why I put in all of the hours in the second contract so that then as time went by - and I did explain this to her at the time - that as time went by and she could do extra hours, then that was all covered in the first contract and she could even do extra hours after his school had finished in the day at home as well as her dress making.”
[41] Mrs Stone said that she was prepared to adapt the hours in the job description and would be happy to have the applicant back. This prompted the Tribunal to suggest a settlement of the matter on the basis of the applicant’s return to work. However, the applicant’s response was ‘I don’t trust Mrs Stone anymore’. (The evidence continued.)
[42] Mrs Stone was asked if she had ever not wanted the applicant as an employee and she replied:
“No, never. I like the way she thinks in rostering, and I like the way she thinks in business senses, that I really needed someone to aid me at head office, which is like a personal assistant as well which I also said to her as her hours become more available that's there if she'd like to go. I said is there any course having been an ex careers advisor at a high school, I tend to like women to be educated, and I said is there any university course you'd like to, you might need to be put through, or Tafe, and she said yes I'd like to do accountancy. And I said well why don't we pursue that, while you're doing that do the rostering, do the other duties across all the centres because I think the girl at head office also needed some assistance with that, especially the rostering because no one understands it as Linda did. And then the role then could be as we expanded and got more preschools, if there were any coming up in the future, then I'd offer her other roles as she wanted to as a career. So that was my main intention.”
[43] Mrs Stone said that having been a working mum, she sympathised with the applicant and was very open to flexible working hours. She said, at no time, was the applicant’s position at Kellyville redundant. Her tasks were merely to be transferred to Head Office and this was the outcome she had wanted. She agreed there was a delay in giving effect to the changes, but the applicant was assured her job was secure. In answer to questions from the Tribunal, Mrs Stone said the position at Head Office had not been filled because it was very hard to find someone of the applicant’s expertise, skills and knowledge.
[44] In cross-examination, Mrs Stone described the applicant’s work over 19 months as reception, talking and liaising with parents, booking children in on the QikKids program and assisting with rostering. She described her work as excellent. Mrs Stone said that with the various duties, the applicant reported to different people, but only she could make decisions on the applicant’s employment. Mrs Stone said that when the applicant asked about her role in July, she had told her it would involve rostering, accounts for all three Centres and liaising with parents.
[45] Mrs Stone said that Mr Clifford was the respondent’s IT consultant and because she was very busy, he had assisted in setting up the job descriptions. He had also suggested the applicant contact him about a possible work opportunity. Mrs Stone described the role of the DOFI, which was to ensure the Centres looked neat and tidy before and after the day’s use. While the applicant had performed these duties in the morning, the respondent needed someone to do them in the afternoon. Mrs Stone had discussed the fact that the applicant could not perform these duties in the afternoon with Mr Clifford. Mrs Stone could not recall Mr Clifford saying that the applicant did not have the personality for this role. He had said she had an analytical mind which he admired. Mrs Stone denied that Mr Clifford had predetermined the unsuitability of the applicant for that role. Rather, it was that someone was needed in the afternoons, as the parents needed consistency and to have someone to whom complaints or queries could be directed in the afternoons.
[46] Mrs Stone agreed that the applicant was never going to be offered that role because she was restricted by what hours she could work. Mrs Stone said the applicant was denied access to her computer as its functions had been transferred to Head Office. Mr Clifford was instructed to inform her beforehand, but regrettably, this had not happened. However, the applicant and Ms Farrar had known what was intended to happen. Mrs Stone added that no one, including her, had known the actual date of the transfer. The new job opportunity had not evolved at that point.
[47] Mrs Stone explained the job description as encompassing changed circumstances and that the applicant could ‘pick and choose’ what suited her, including the hours she worked. The job description was the full extent of the whole job and the applicant could then tell her what hours she could work. Mrs Stone said that no hours were taken away from the applicant, but could be expanded at her will. Mrs Stone said that she and the applicant talked about this many times. There was even talk of her going into sales.
[48] Mrs Stone agreed that the meeting on 31 August 2009, was a good meeting and that Mr Clifford was to come back to the applicant, that day, with a new job description. This did not arrive until 3 September 2009. The applicant then sent an email saying she would not accept the position, because of the hours. Mrs Stone said the response she needed was what hours would be acceptable. Mrs Stone asked her to reconsider and that Mr Clifford would be moving on to do other programs. Mrs Stone conceded that the second job description only reduced the hours by 45 minutes.
[49] Mrs Stone said that on 9 September 2009, she sent an email to the applicant asking if she accepted or declined the offer to relocate to Head Office. When she declined on 11 September, Mrs Stone took this to be her resignation of employment.
[50] Mrs Stone was asked about an email from Ms Farrar of 8 September 2009, in which she asked the applicant to return her keys. She said this was necessary because the applicant had taken the next four or five days off and the keys were required to open the Centre.
[51] Mrs Stone strongly asserted that she had never dismissed the applicant and that she had only asked her to relocate to Head Office for the business effectiveness of centralising the various Centre functions.
[52] In re-examination, Mrs Stone confirmed that after 28 August 2009, the applicant continued her employment and had a week off on annual leave and carers leave.
[53] Mrs Stone said that she had many, many conversations with the applicant about her role being transferred to Head Office. Mrs Stone said the reference to ‘ensure adequate staffing in rooms across lunch time period 12:00pm – 1:00pm’, did not mean the applicant had to be actually at the Centre. She could do it by ringing around from home.
[54] Mrs Stone said she believed the applicant really did not want to go to Head Office. She was aware of a ‘little bit of angst’ between the applicant and Mr Clifford and that the applicant really did not like him. However, Mr Clifford’s role was drawing to an end, as the IT program was almost complete.
[55] Mrs Stone said that when she told Ms Farrar that the applicant was not returning to Kellyville she meant that she would be at Head Office instead, not that she had been dismissed.
SUBMISSIONS
For the applicant
[56] Mr McGovern submitted that over a period of two months, changes were initiated by the respondent, which were never explained to the applicant and which had caused her to be concerned for her future employment. Despite Mrs Stone’s assurances, there was no certainty. 90% of her job was taken away from her on 28 August 2009, with nothing offered to her, except that she be patient. He said that despite numerous communications, there was no finalisation of the key issue of hours of work.
[57] Mr McGovern put that it was Mr Clifford who was ‘calling the shots’ and Mrs Stone did not know what he was doing. He said that it was not an issue about the location or the people who worked there (at Head Office), just that her job had been taken away. The job description did not match her hours or what work she had previously performed. She had rejected her job description, not her employment with the respondent. Mr McGovern said that on 8 September 2009, the applicant’s keys were taken from her and her supervisor said goodbye and good luck.
For the respondent
[58] Mr Rochfort provided the following written outline of his submissions:
It is noted the Applicant has provided no outline of her submissions on the question of jurisdiction and is thereby in breach of the Directions of the Commission.
The primary position of the Respondent is that there was no termination of the Applicant at initiative the Respondent (sic).
To the contrary, whilst the Respondent had made a decision to relocate the Applicant from the location where she had been employed, to a position in Head Office, only a short distance away, not only was it reasonable and lawful for the Respondent to make this decision, it was not prejudicial in any way to the Applicant and was consistent with the terms and conditions under which she had been employed.
The Respondent’s position is that, up to 30th August, 2009, it had no reason to believe that the Applicant would not accept the revised role which had been determined for her to undertake.
Furthermore, the Respondent was reasonably entitled to exercise its prerogative to remove the accounting function for (sic) the list of duties required for the Applicant to perform, and to advise staff accordingly. In this respect, Exhibit 2 attached to the Applicant’s statement, whilst its origins lead to some speculations is relevant in that whilst its advised staff that the Applicant’s role had been changed, it also noted the role which the Applicant was continuing to undertake.
The evidence of Ms Stone & Mr Clifford makes it abundantly clear, in this submission, that
(a) Firstly, the role that Mrs McGovern had been performing was not redundant by any definition; and
(b) Secondly, Mrs Stone wished for Mrs McGovern to remain in employment and was prepared to offer her any incentive and encouragement to have her remain in employment.
(c) Therefore (sic) was no initiative in any way on the part of the Respondent to bring about a termination of the Applicant’s employment.
The evidence of the Applicant does not sustain an argument that her employment was terminated by act or at the initiative of the Respondent.
In fact, it is submitted that it does not support any argument as to how the employment came to an end, other than that Mrs McGovern “wished to decline” the job description (see Exhibit 9 attached to the statement of Mrs McGovern) which Mr Clifford took, quite reasonably, to mean that Ms McGovern was effectively giving notice of termination of employment and advising that the Respondent “will need to seek an alternative person for the role…”.
In summary, it is submitted that the Commission has no jurisdiction to hear and determine the matter on the basis that the termination of the Applicant’s employment occurred as a consequence of an act of her own volition without there having been any conduct by the Respondent warranting such act.
[59] In further oral submissions, Mr Rochfort said that the issue in this case was, at whose instigation did the termination of employment occur? He said that, at no time, had the respondent dismissed the applicant or ever wanted to see her leave her employment. Now five months later, it still offered her a return. She was good at what she did and was a valued employee. Mr Rochfort submitted that it defied logic why Mrs Stone would want to get rid of someone so integral to the business.
[60] Mr Rochfort said that the applicant’s position moved to Head Office. While there was a business requirement for afternoon work, this did not mean the respondent was not prepared to accommodate the applicant’s inability to work in the afternoon. Mr Clifford made it plain it was a key issue which needed to be worked through (see par 12).
[61] Mr Rochfort put that, at no time, had the issue of hours been resolved, but the applicant simply said ‘no’ and would not wait to work through the issue by discussion, notwithstanding numerous invitations for her to do so.
[62] The respondent never terminated the applicant; never wished to terminate her; nor ever did anything constructively which had the effect of leading to termination. The applicant used her child as her excuse and effectively resigned. The application should be dismissed for want of jurisdiction.
In reply
[63] Mr McGovern said that the rhetoric used in various emails from the respondent did not match the reality. How long was the applicant expected to be patient when her access to the computer was removed and no one could tell her what was going on? She turned up for work for the next week and a half and still the job description included unacceptable hours. Most people do not work 11 hour split shifts. The only person who could verify that the applicant was dismissed on 8 September 2009, had not attended the Tribunal to give evidence. The request for the material in the email concerned the separation certificate which had never been provided. Mr McGovern noted that when he asked Mrs Stone whether the applicant could come back to Cubbyhouse, she could not remember and then in re-examination, said she had meant for her not to turn up at Cubbyhouse, but to turn up at Head Office.
CONSIDERATION
[64] It is trite law that to have jurisdiction to determine an unfair dismissal claim, the Tribunal must be satisfied that there has been a dismissal of the employee by the employer. So much so is plainly evident from the terms of the Act, and its predecessor statutes. This will often be self-evident, where, for example, the employee is told, or given a letter, expressly giving effect to the termination of employment. Other cases will not be so clear cut, such as in the case of a constructive dismissal. This is one such case. Jurisdiction will be decided in a preliminary way, by the Tribunal determining whether the applicant was effectively terminated by the conduct of the employer, being its alleged refusal to provide comparable employment, particularly in respect to hours, or as the respondent contended, the applicant brought about her own termination of employment by refusing to accept a reasonable transfer to Head Office.
[65] The principles of constructive dismissal are well known and despite neither party providing authorities on the subject, it is as well that I set the scene, as it were, by referring to the general principles of constructive dismissal and some of the authorities from which it is derived.
[66] Most of the relevant authorities deal with the circumstances of an employee’s ‘forced resignation’, but the principles found therein encompass a wider application, including to the facts and circumstances of this case. The principle which the applicant must establish in this case, is that there was some action/s on the part of the employer, which was either intended to bring the employment to an end, or had the probable result of bringing the employment relationship to an end. The much quoted authority for this principle is that found in Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200. In P O’Meara and Stanley Works Pty Ltd (U2006/2874), 11 August 2006, PR973462, a Full Bench of the Australian Industrial Relations Commission, after considering the decision in Mohazab v Dick Smith said:
“In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.”
[67] In the Industrial Relations Commission of New South Wales, the lead authority on constructive dismissal is that found in Allison v Bega Valley Council (1995) 63 IR 68. There, the Full Bench said at page 72 to 23:
“In order to undertake the necessary analysis it is necessary to look carefully at all the relevant facts. It is necessary to determine whether the actual determination was effectively initiated by the employer or by the employee particularly where the dynamics within a factual situation may change. For example, an employer may demand a resignation with a threat of dismissal, negotiations may then ensue and the employee may ultimately be genuinely pleased with the outcome of those negotiations to the extent that any resultant resignation may be said to be given freely and without any undue influence being brought to bear by the employer.
Where an employee initiates the termination of the contract of employment it is necessary to consider whether that ostensible act of termination was given freely and without any undue pressure. If the ostensible resignation is, in effect, a response to and consistent with a desire by an employer that such resignation be forthcoming, then what has occurred may be that the termination has been brought about by the employer and that in this way the employee has been dismissed.”
[68] And in a later decision in Ward v Mobile Innovations Limited [2002] NSWIRComm 287, the Full Bench said at par 6:
“…It may be that the conduct of an employer is so onerous or unreasonable prior to a termination that a termination will be found to lay in the hands of an employer, even where the employer has not expressly required an employee to offer resignation or threatened dismissal in lieu of such an offer. However, this notion merely accords with that which has already been formulated in Allison.”
[69] Olsson J, of the Supreme Court of South Australia put the principles in a slightly different, but consistent way, when he said in Easling v Mahoney Insurance Brokers Pty Ltd (2001) 78 SASR 489, and with whom Doyle CJ and Bleby J did not disagree:
“Suffice to reiterate that the notion of constructive dismissal implies the existence of conduct on the part of an employer which is plainly inimical to a continuance of a contract of employment according to its express or implied terms. The authorities establish the concept that there is implied in a contract of employment a term that the employer will not, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. An intention to repudiate need not be proved. Rather, it is a matter of objectively looking at the employer’s conduct as a whole and determining whether its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it.”
[70] I turn now to the facts and circumstances of this case. In my view, it was plainly apparent that the respondent was always alive to, and conscious of the applicant’s sensitivities, over her hours of work. As early as 2 September 2009, when Mr Clifford made the first job offer, he said:
“The key thing I have left off at this stage is hours of work as I will need to discuss your exact times available and how we can work this through.”
In addition, I also note the applicant’s direct supervisor, Ms Farrar, said that she knew the applicant had concerns over her hours of work. Moreover, Mrs Stone made it abundantly clear that the hours in the job description were not set in stone (pardon the pun) and she only had to nominate what hours she could work and they would be accommodated. I accept Mrs Stone’s testimony in this regard and, accordingly, find that it was unreasonable for the applicant to rebuff Mrs Stone’s more than conciliatory and flexible approach.
[71] This conclusion is further reinforced when, during the course of Mrs Stone’s evidence, the Tribunal suggested that Mrs Stone’s glowing praise of the applicant might well be suggestive to her offering to re-employ the applicant at this late stage in the proceedings. When this was confirmed by Mrs Stone, the applicant, without even considering on what terms she might be taken back, said ‘I don’t trust Mrs Stone anymore’. This fortified my conclusion that the applicant was not really interested in her continuing employment, but had another agenda instead.
[72] Mrs Stone’s evidence in the witness box, that she never wanted to get rid of the applicant and valued her work, was not some after thought to bolster the respondent’s case. I have no reason to doubt Mrs Stone’s evidence in that regard. In the applicant’s own statement and that of Mr McGovern they both describe the same supportive sentiments having been expressed by Mrs Stone and verified by Mr Clifford in the meeting of 31 August 2009. Mrs Stone gave the applicant various options to address her concerns over hours, including nominating the hours she could work, offering her further training and allowing her son to come to work.
[73] Understandably, Mr McGovern’s evidence was supportive of his ex-wife’s. However, she had not told him crucial aspects of the situation, for example, it is simply not correct, as Mr McGovern asserted, that 90% of the applicant’s work was taken away from her on 28 August (when her computer access was denied). Relevantly, the work had not been removed from her, nor had it been removed at all; rather, these functions were simply transferred to Head Office with Mrs Stone expecting - indeed hoping - that the applicant would transfer with the functions. It was known that the applicant was to have two days leave in the week commencing 7 September 2009, which became five days with the addition of carer’s leave. In my view, it was a reasonable expectation of Management that the applicant would resume her duties at Head Office on 15 September 2009.
[74] I do not accept the applicant’s interpretation of the email from Ms Farrar of 8 September 2009, that this represented her dismissal three days before Mrs Stone says she had resigned. The email was expressed as follows:
“I asked Joan to have her request in writing to you and she agreed. I do not have it though I assumed she would email this through to you, you’ll have to chase it up with her. If possible can you pls return your keys ASAP as I will have to give them to Belinda. Goodluck with everything.”
[75] In my opinion, this email makes perfect sense as a request for the applicant’s keys to the Kellyville Centre in circumstances where it was known the applicant’s functions and her job were transferred to Head Office and where it was also known that the applicant would not be in for the balance of the week in any event. In the absence of Ms Farrar’s evidence as to what she meant by wishing her luck, it is open to conclude - and I do so - that Ms Farrar, who had been the applicant’s supervisor, was merely wishing her well in her new job at Head Office.
[76] Moreover, there is no evidence that Mrs Stone had told anyone, let alone the applicant, that she was to be dismissed, on or about 8 September 2009. If this was otherwise, it makes no sense why Mrs Stone would continue to entreat the applicant to reconsider her decision (to reject the position) on 9 and 11 September 2009. As Mr McGovern properly conceded, Mrs Stone was the only person with authority to determine the applicant’s employment.
[77] The applicant focussed exclusively on the unacceptable hours in both job description offers, yet she completely ignored Mrs Stone’s invitation to name what hours she could work. In view of the refusal to co-operate, the respondent had to put something in the job descriptions. Nevertheless, the hours were, at all times, subject to further negotiation and agreement. The applicant’s case conveniently ignores this. Even if one accepts that the fundamental issue for the applicant was the unacceptable hours of work, it is very curious that despite being asked to nominate what hours she could work, she never once did so. Her answers were always in the negative: ‘I can’t work afternoons’. This was not what she was being asked. It seems to me that if she was really serious about continuing her employment, she would have specifically identified the hours she could work, and not answering by saying the hours she could not. It was also no defence to say that the respondent’s job descriptions contained unacceptable hours, when the applicant knew full well that Mrs Stone’s offer was for her to say what hours she could work and they would be accommodated.
[78] It is plain that the applicant had wanted redundancy from as early as the meeting on 31 August 2009. It is also obvious that by 2 September 2009, she was seeking advice and requesting outstanding entitlements, including a superannuation statement. To my mind, this does not reconcile with an employee who is genuinely trying to resolve her continuing employment with the employer. In my view, she was preparing the groundwork for her own departure from the respondent. Despite the offers of Mrs Stone to assist with her son attending the office after school with her, or even working from home, the applicant did not seem to be interested.
[79] There was, of course, another fairly obvious reason why the applicant did not want to transfer to Head Office. She made it abundantly plain that she was not prepared to work with Mr Clifford and told Mrs Stone so. It was not made clear as to the reason for the applicant’s hostility towards Mr Clifford. On the face of the email evidence, he did not appear to have adopted a rude, hostile or unfriendly stance in his dealings with the applicant. She did not explain her reasons why she felt as she did. Be that as it may, it cannot be an acceptable basis to refuse an otherwise reasonable and comparable offer of continuing employment, simply because one employee does not want to work with another employee. Moreover, the applicant was aware that Mr Clifford’s involvement at the Centre would be very much reduced, as the computer program he was working on, was drawing to completion. In light of these circumstances, in my view, it was not a valid, nor even a factual basis for rejecting the transfer to Head Office. Based on the applicant’s refusal to accept comparable alternative employment and her refusal to work with Mr Clifford, it would seem to me that the applicant wanted everything her own way, or not at all, and wanted redundancy as compensation as the only alternative. Viewed in this way, the stance adopted by the applicant can in no way be seen as a termination of employment at the initiative of the employer.
[80] Even if I be wrong about at whose initiative the applicant’s employment was brought to an end, I do not accept that the transfer to Head Office constituted a genuine redundancy. No job disappeared. The work was merely transferred to another location very close by. It constituted comparable employment. The applicant made no effort to see whether the job was, in fact, comparable employment or a sham to force her resignation.
[81] Section 389 of the Act defines the meaning of a genuine redundancy:
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.
I would observe that, in this case, subclause (a) does not apply because the employer did require the applicant’s job to be performed and by her. Subclause (b) is not relevant. Subclause (2) further demonstrates that this was not a genuine redundancy because it was reasonable for the applicant to be redeployed within the employer’s enterprise.
[82] In any redundancy situation, there are certain obligations on an employee which include:
(a) a willingness to genuinely participate in consultation with the employer;
(b) genuinely participating in exploring alternatives to redundancy; and
(c) not unreasonably refusing to accept retraining, alternative employment, redeployment or relocation.
See my decision in Shop, Distributive and Allied Employees’ Association, New South Wales, and W D & H O Wills Holdings Ltd [2000] NSWIRComm 98.
[83] Even if the alternative employment may have unacceptable features to it, it is not necessarily valid or reasonable for the employee to reject it: See Clothing & Allied Trades Union of Australia v Hot Tuna Pty Ltd (1988) 27 IR 226.
[84] In my opinion, the applicant in this case would not tell the respondent what hours she wanted to work and was not even prepared to give the new role at Head Office ‘a go’ to see if it was truly reasonable comparable employment. However, as I said, the Tribunal does not really need to go to the issue of whether the applicant’s termination of employment was a genuine redundancy, because I can comfortably find that the termination of employment was brought about at her own initiative by her refusal to accept the role at Head Office. As a result, there was no dismissal by the employer, constructive or otherwise.
[85] Accordingly, Fair Work Australia has no jurisdiction to entertain the applicant’s claim of unfair dismissal, pursuant to s 394 of the Act. The application must therefore be dismissed. I do so by order dated this day.
DEPUTY PRESIDENT
Appearances:
Mr S McGovern, for the applicant
Mr P Rochfort (Agent), for the respondent
Hearing details:
2010
SYDNEY
12 February
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