Ms Maria Tino v Regis Resources Ltd

[2014] FWC 3333

[2014] FWC 3333 [Note: An appeal pursuant to s.604 (C2014/) was lodged against this decision - refer to Full Bench decision dated 29 August 2014 [[2014] FWCFB5358] for result of appeal.]

FAIR WORK COMMISSION

DECISION

AND

REASONS FOR DECISION

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

Ms Maria Tino
v
Regis Resources Ltd
(U2014/3574)

COMMISSIONER CLOGHAN PERTH, 22 MAY 2014

Unfair dismissal.

[1] On 6 January 2014, Ms Maria Tino (Ms Tino or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from Regis Resources Ltd (Employer).

[2] The application is made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[3] The application was unable to be resolved at conciliation and was referred to me for arbitration on 18 March 2014.

[4] In response to the application, the Employer asserts that the Applicant is not protected from the unfair dismissal in the FW Act because Ms Tino’s dismissal was a case of genuine redundancy.

[5] To assist in the resolution of the Employer’s jurisdictional objection, I issued procedural directions on 31 March 2014 and advised the parties that the matter would be determined following written submissions.

[6] Having received the written submissions, this is my decision and reasons for decision as to whether the Applicant’s dismissal was a case of genuine redundancy and therefore not protected from the unfair dismissal provisions of the FW Act.

RELEVANT LEGISLATIVE FRAMEWORK

[7] Section 385 of the FW Act sets out the meaning of unfair dismissal as follows:

“(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”

[8] The meaning of genuine redundancy is contained in s.389 of the FW Act 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.”

[9] Shortly put, where it is found that a dismissal is a genuine redundancy, it is not an unfair dismissal.

RELEVANT BACKGROUND

[10] Ms Tino commenced employment with the Employer as a Casual Laboratory Assistant on 16 January 2013.

[11] On 15 April 2013, Ms Tino commenced full-time employment as the Site Accounts Administrator.

[12] Ms Tino was employed at the Employer’s Garden Well Mine (GWM) which is one of three goldmines comprising the Duketon Gold Project.

[13] In August 2013, Mr B Wyatt was appointed Registered Manager/General Manager for GWM. On his appointment, Mr Wyatt was required to undertake an organisational review of GWM.

[14] Between September and December 2013, Mr Wyatt undertook the organisational review with a particular focus on staffing levels.

[15] With respect to the administrative staff, Mr Wyatt was assisted by Ms Hately, Site Administration Superintendent and Ms Gledhill, the then Human Resources and Office Manager located in Perth, Western Australia.

[16] Mr Wyatt identified during the organisational review that GWM was operating with eight (8) site administration staff, whereas the other two mine sites were successfully operating with three (3) site administration staff. Mr Wyatt came to the conclusion that GWM could operate with four (4) site administration staff.

[17] Unrelated to Mr Wyatt’s organisational review, three (3) of the eight (8) administration staff gave notice of their resignation of employment in or about early December 2013.

[18] On 2 December 2013, Ms R Botten was appointed as the Human Resources and Office Coordinator at the Perth, Head Office. As part of her interview for the position in November 2013, Ms Botten was informed about the organisational review of GWM and part of her immediate role, if appointed, would be managing the likely redundancies out of the review.

[19] On or about 11 December 2013, Ms Hately advised Ms Botten that, as a result of Mr Wyatt’s organisational review, the position of Site Accounts Administrator was to be abolished. Ms Botten was required to see if there was any alternative suitable appointments available that Ms Tino could be redeployed into.

[20] Ms Botten subsequently made inquiries and advised Ms Hately that there were no alternative suitable appointments at the time, or in the foreseeable future, that Ms Tino could be redeployed into.

[21] Mr Bradley White is Ms Tino’s husband. Mr White was also employed at GWM as a Loader Operator.

[22] On 15 December 2013, Mr White raised with Mr Boston safety issues at GWM.

[23] Mr Boston met with Mr White on 16 December 2013 at 9:00 am and advised him that he [Mr Boston] had raised Mr White’s safety issues with Mr Wyatt and that Mr Wyatt would follow up the issues directly with Mr White. Mr White states that, “I then told Roger [Mr Boston] that I will be taking these issues to the mines department as I could not continue doing my job without some sort of plan in place”.

[24] On leaving Mr Boston’s office, Mr White met his wife who was returning to her office. Ms Tino informed her husband that she was required to attend a meeting with Mr Wyatt at 11:45.

[25] The 11:45 meeting was attended by Mr Wyatt, Ms Hately and the Applicant. At the meeting, Ms Tino was informed that her position had been made redundant and that there were no alternative positions available at that time.

[26] Further, at the 11:45 meeting, Ms Tino was given correspondence dated 16 December 2014 (sic) which is entitled “Termination of your employment by reason of redundancy”. The correspondence refers to the organisational review, operational requirements, Ms Tino’s entitlements on being made redundant, when employment would cease and referring the Applicant to the Fair Work Ombudsman’s website. The correspondence makes it clear that the decision to make her redundant was not a reflection of her work performance and that Mr Wyatt was willing to provide a reference for Ms Tino.

[27] After being advised that her position had been made redundant, Mr White requested that both he and his wife meet with Mr Wyatt. Mr White asserts that he stated to Mr Wyatt that, “if you had an issue with me you could sort it out with me not my wife” and “because you expected me to leave if you got rid of Maria”.

[28] Mr Wyatt states that the focus of the meeting related to Mr White’s workplace issues and Ms Tino’s redundancy was hardly discussed. Subsequently, Mr White had a meeting with Mr Boston and offered to be made redundant, if the package [redundancy] was right.

[29] On 18 December 2013, Ms Tino and Mr White left the mine site.

[30] On 20 December 2013, the Applicant attended the Perth Head Office with Mr White. Present at the meeting on 20 December 2013, were Mr Harp, Chief Operating Officer and Ms Botten. Ms Tino was again informed that the Site Accounts Administrator had been abolished and options for redeployment had been considered but no suitable alternative positions were available. Ms Tino was required to sign a deed of separation. The Applicant requested time to consider whether she signed the document or not.

[31] On 23 December 2013, Ms Tino advised the Employer that she would not sign the deed.

[32] On 24 December 2013, the Employer sent correspondence to Ms Tino referring to the meeting on 20 December 2013 and confirming her termination of employment due to her position being made redundant. Ms Tino was paid a redundancy payment.

[33] On 6 January 2014, Ms Tino made application to the Commission seeking a remedy for alleged unfair dismissal from her former Employer. The Employer’s response asserts Ms Tino’s dismissal was as a consequence of a genuine redundancy and accordingly, cannot constitute an unfair dismissal.

APPLICANT’S CASE

[34] The Applicant’s case is best expressed in an email which she sent to Ms Botten on 18 December 2013. The relevant parts are as follows:

“I am aware that companies do restructure but in this particular instance i think it was done unfairly and not a coincidence as you think, because I know that in the last few days Brad [Mr White] had raised genuine safety issues...and actions need to be taken asap.
...
Brad spoke to Roger [Mr Boston] at about 9 am...Brad told Roger [Mr Boston] to inform Brian [Mr Wyatt] that he would take this issue to the mines inspector who was due on Wednesday the 18/12/13.
...
One hour later i was told of the meeting, so my termination, is a direct result of retaliation by Brian, for my husband’s actions.
...
As you are aware, the other site accountant will be leaving soon, for maternity reasons, and she will need to be replaced, so there was a position available there as she does the same role in maintenance as i was performing.” (my emphasis)

CONSIDERATION

Redundancy

[35] The causes of redundancy are many and varied. A downturn in business activity or technological change are common reasons for the causes of redundancy. However, adjusting employee requirements to meet business objectives is common and is generally achieved through organisational reviews and subsequent restructures.

[36] An employer in exercising its right to manage its business and dismiss employees who are excess to requirements is subject to the legislative provisions and the relevant award or agreement, in this case, the Clerks - Private Sector Award 2010.

Was the position occupied by the Applicant excess to the Employer’s business requirements?

[37] The Employer, after an organisational review of its Duketon Gold Project, and in particular the GWM site, came to the view that work at GWM could be completed with four (4) less administrative positions. This conclusion was reached, in part, using a comparison with its sister mine sites. The organisational review was completed over a period of approximately three months.

[38] The Commission is not in a position to dispute or displace the conclusion which the Employer arrived at regarding the amount of administration staff required to GWM. The Employer came to the view that it required four less administration staff, including the position occupied by the Applicant.

Was the job no longer required to be performed?

[39] The primary functions of Ms Tino’s position was transferred to the Head Office in Perth. The remaining minor activities of Ms Tino’s position were carried out by the continuing administrative staff.

[40] I am satisfied from the submissions that the position of Site Accounts Administrator was no longer required to be performed and occupied at GWM in accordance with paragraph 389(1)(b) of the FW Act.

Was the Applicant notified that she was being made redundant and given notice?

[41] On 16 December 2013, the Applicant was advised verbally and in writing that the position of Site Accounts Administrator was being abolished and the consequential termination of her employment for redundancy reasons.

[42] Ms Tino was given a month’s notice of her redundancy which could be effected in a variety of ways.

Did the Employer consult with Ms Tino after making the decision to abolish the Site Accounts Administrator position?

[43] Neither the Applicant nor the Employer submitted that there was any consultation with Ms Tino prior to the decision to abolish the Site Accounts Administrator position.

[44] I do not consider that the 11:45 am meeting on 16 December 2013 was for the purposes of consultation but to advise Ms Tino of the decision that her position had been abolished, give her notice and that there were no suitable alternative positions available.

[45] Having been advised of the decision at the 11:45 am meeting, I consider that any opportunity for consultation at the subsequent afternoon meeting on the same day, was overtaken by Mr White’s safety issues. Further, the meeting allegedly focussed on Ms Tino’s dismissal being “engineered” as payback for Mr White raising safety issues at the mine site.

[46] At the meeting on 20 December 2013, the Employer again discussed with Ms Tino the redundancy. Ms Tino was asked to consider signing a deed of separation which reflected termination of employment by reason of redundancy.

[47] I am satisfied that, in the somewhat difficult circumstances, the Employer in broad terms complied with the provisions of paragraph 389(1)(b) of the FW Act.

Was redeployment to a suitable alternative position considered by the Employer for Ms Tino?

[48] Having made the decision to abolish the position of Site Accounts Administrator, Ms Botten was required to examine whether there was suitable alternative employment and was unsuccessful in finding such a position.

[49] Ms Tino queried whether she could be deployed into the position of Maintenance Administrator. The position was, and presumably still is, occupied substantively by Ms Gardiner who will be taking maternity leave from the end of May 2014. The Employer is unsure whether Ms Gardiner’s position will be filled when she goes on maternity leave. Ms Tino was advised of Ms Gardiner’s arrangements and the Employer’s position regarding the Maintenance Administrator on 20 December 2013.

[50] The Applicant claims that “As soon as I was made redundant another new person started in my position, a week later”. The Employer rejects this assertion. Ms Tino’s position was made redundant and remains redundant. The Employer sets out that the occupant of the Site Accounts Administrator position gave notice of resignation in November 2013. After giving notice, the Employer began a recruitment and selection process. The previous incumbent of the Site Administrator position ceased employment on 25 December 2013 and the new employee commenced on 26 December 2013. Notwithstanding the recruitment process, the Employer’s assessment was that Ms Tino was unsuitable for the position based on her skills and experience.

[51] Overall, I am satisfied that the Employer considered redeployment of the Applicant into a suitable alternative position and the provisions of s.389(2) of the FW Act are not applicable.
[52] The Employer offered to assist in updating the Applicant’s resumé, recommending suitable recruitment agencies and providing her with a reference.

CONCLUSION

[53] For the above reasons, I find that Ms Tino’s dismissal was a case of genuine redundancy. Ms Tino asserts that the genesis of her dismissal was her husband raising safety issues at their place of employment. I am satisfied, from the submissions, that the precedent causes or actions which led to the Applicant’s dismissal for redundancy occurred before Mr White raising the safety issues beginning with Mr Wyatt’s appointment in August 2013. While it is understandable that Ms Tino draws a connection between the safety issues raised by her husband and her dismissal, I am satisfied that there was no compelling connection. The abolition of the position of Site Accounts Administrator was the Employer adjusting its employee requirements to meet business objectives.

[54] Accordingly, the application will be dismissed. An order to this effect will be issued conjointly with this Decision and Reasons for Decision.

COMMISSIONER

Final written submissions:

Applicant: 5 May 2014.

Respondent: 15 April and 8 May 2014.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR550800>