Ms Penelope Millen v Electrix Pty Ltd

[2014] FWC 6912

[2014] FWC 6912

FAIR WORK COMMISSION

DECISION

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

Ms Penelope Millen
v
Electrix Pty Ltd
(U2014/4117)

COMMISSIONER CLOGHAN PERTH, 6 OCTOBER 2014

Unfair dismissal - jurisdictional objection - genuine redundancy.

[1] On 29 January 2014, Ms Penelope Millen (Ms Millen or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from her former employer Electrix Pty Ltd (Employer).

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

[3] In response to the application, the Employer asserts that:

● the Applicant is not protected from the unfair dismissal provisions of the FW Act as her dismissal was a case of genuine redundancy.

[4] To assist in the determination of whether Ms Millen’s dismissal was a case of genuine redundancy, I issued Directions and advised the parties that I intended to deal with the matter by way of written submission. In addition, each party had the opportunity to challenge the submissions or witness statements in a hearing.

[5] The Applicant requested a hearing.

[6] At the hearing, the Applicant was represented by Dr V Marshall and Ms Millen gave evidence on her own behalf.

[7] The Employer was represented by Ms Fechner.

[8] This is my decision and reasons for decision on 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 STATUTORY FRAMEWORK

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

“(a) the person has been dismissed; and

(b) ... and

(c) ... and

(d) the dismissal was not a case of genuine redundancy.”

[10] 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.”

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

RELEVANT BACKGROUND

[12] On 28 May 2012, the Applicant commenced employment with the Employer as its Regional Administrator. Ms Millen was employed pursuant to the Clerks-Private Sector Award 2010 (Clerks Modern Award).

[13] Ms Millen’s terms and conditions of employment (with the exception of summary dismissal) provided that her employment could be terminated by either party giving one (1) month’s notice, except where the FW Act requires a greater period.

[14] Ms Millen is entitled to redundancy payments in accordance with the FW Act.

[15] Ms Millen reported to the General Manager, Western Australia and was not required to supervise any other staff.

[16] The Employer states that it reviewed its administration requirements in its Western Australian operations in November 2013.

[17] On 17 December 2013, the Regional Manager, Western Australia, sought approval from the General Manager, Australia, to make the position of Regional Administrator redundant for the following reasons:

“1. The establishment of the Osborne Park office creates geographical separation from the Bibra Lake depot, allowing and requiring the administrative functions at each office to be undertaken independently.

2. The Osborne Park office is sufficiently small that it does not at this time need a full time resource for general administrative duties.

3. The Projects group has not recently secured sufficient ongoing work in order to justify a full time resource for administrative support.”

[18] Approval to abolish the position was received on the same day, 17 December 2013.

[19] Consultation with the Applicant on 19 December 2013 did not proceed due to Ms Millen being unexpectedly unable to attend work. Consultation was deferred until after the Employer’s Christmas/New Year shutdown.

[20] The Employer has provided emails of its attempts to find alternative employment for the Applicant after the Christmas/New Year shutdown.

[21] On 8 January 2014, the Applicant was informed of the need to attend a meeting on 9 January 2014. Ms Millen was advised that she could bring a support person to the meeting on 9 January 2014.

[22] At the meeting on 9 January 2014, the Applicant was advised that the position of Regional Administrator had been made redundant. The Employer representatives took into account Ms Millen’s views but I think it is fair to say that the decision had already been made to make the Regional Administrator’s position redundant.

[23] Ms Millen received formal written notification of her termination of employment by reason of redundancy on the same day (9 January 2014). Ms Millen received one (1) month’s pay in lieu of notice and redundancy pay which recognised her service with a “sister” company in New Zealand.

[24] Ms Millen does not contest the essential facts of the events leading to her dismissal. However, the Applicant states her dissatisfaction with some decisions made by the Employer in relation to work location, uncertainty of reporting arrangements and interaction with her work colleagues. In conclusion, Ms Millen states that:

“I really felt as Mr Wilson and Mr Cowan were reprimanding me for my performance. My termination letter states that the termination is not performance relating but I was definitely being admonished for my performance...”

[25] Ms Millen refers to three (3) events which occurred after her employment ceased. Firstly, a communication with Ms Smith regarding access to the Employer’s documents concerning termination and redundancy. The second matter concerns her enquiry relating to McConnell Dowell (the Employer’s parent company) advertising for a Senior Office Administrator on Seek.com which Ms Millen claims she was “well qualified to do” and which “was allegedly taken down the following day”. The third issue relates to the Applicant’s unsuccessful application for a position as a Personal Assistant to the Regional Manager for another subsidiary company of McConnell Dowell. This last matter occurred in March 2014.

CONSIDERATION

s.389(1)(a) - the employer no longer requires the job to be performed by anyone because of changes in operational requirement

[26] Section 396 of the FW Act requires the Commission to determine whether a person is protected from unfair dismissal prior to considering the merits of an application. In this particular application, it is necessary to consider whether Ms Millen’s dismissal was a case of genuine redundancy.

[27] The meaning of genuine redundancy is set out in s.389 of the FW Act.

[28] On or about November 2013, the structure and location of the Employer’s business in Western Australia was changing as well as its focus for potential new work. As a consequence, the Employer reviewed its administration requirements and determined, on 17 November 2013, that it no longer wanted to retain the position of Regional Administrator.

[29] On 17 December 2013, the Western Australian Regional Manager sought, and was granted, approval from the National Manager, to make the Regional Administrator’s position redundant.

[30] The reasons for making the position redundant were documented.

[31] Due to the restructure of the Western Australian business, the duties and functions of the Regional Administrator were either allocated to other officers or not required due to the size of the office, insufficient work, geographical changes and her duties being carried out independent of the position.

[32] The Explanatory Memorandum to the Fair Work Bill 2008 (Explanatory Memorandum) provides examples of changes to the operational requirements of an enterprise which will lead to a genuine redundancy. They are as follows:

“1548.

• a machine is now available to do the job performed by the employee;



• the employer’s business is experiencing a downturn and therefore the employer only needs three people to do a particular task or duty instead of five; or



• the employer is restructuring their business to improve efficiency and the tasks done by a particular employee are distributing between several other employees and therefore the person’s job no longer exists.”

[33] I find that Ms Millen’s dismissal was a case of the Employer no longer wanting the role and duties of the Regional Administrator being carried out by a discrete person.

s.389(1)(b) - has the employer complied with any obligation in a modern award or enterprise agreement or consulted about the redundancy

[34] The Applicant did not refer to the Employer’s obligation to consult with her pursuant to a modern award or enterprise agreement.

[35] The Applicant’s contract of employment refers to the applicable award being the Clerks Modern Award. Clause 14: Redundancy of the Clerks Modern Award does not have an obligation upon the Employer to consult with employees concerning that person’s redundancy.

[36] Clause 8: Consultation of the Clerks Modern Award provides for consultation regarding major workplace change. I am satisfied that the abolition of one position is not “major workplace change” as set out in Clause 8.

[37] Accordingly, I find that there was no obligation in a modern award or enterprise agreement to consult about the redundancy pursuant to paragraph 389(1)(b) of the FW Act.

[38] Despite my finding immediately above, I consider the essence of this application is found in the manner in which the Employer consulted with Ms Millen after it made the decision to make the Regional Administrator’s position redundant. This was put by Dr Marshall as follows:

“DR MARSHALL: Right, can I just make one statement, Commissioner? That would be, I guess, the underlying challenge, would be the process. That's the bottom line of what I believe Ms Millen is challenging is the process. It's not what occurred. It's how it went about it.” 1

[39] More specifically in cross examination:

“MS FECHNER: So Penny, why do you believe that the process wasn't fair or relevant or we didn't use procedural fairness?---There was no consultation, no consultation at all. I was told just the previous day less than 24 hours that there was going to be a meeting. I wasn't given an agenda. I wasn't told exactly what the meeting was about. I was told that I would be informed in the meeting. There was no consultation as far as what I was actually, my task, my role, who I was working for, what I was doing, how much time it was taking or whether - you know, if they had decided to shift some of the work, the admin work back to Bibra Lake. Was there other things I could have been doing? There was plenty of tasks that I'd actually not achieved and some tasks which Mr Wilson had already agreed to getting a temp in because I couldn't manage to do those tasks. So it was nothing like that. There was no - - -“ 2

“So where did we let you down?---There was no consultation to the process as I said before.” 3

[40] And in re-examination:

“DR MARSHALL: In relation to again the process is there anything further that you'd like to say, Ms Millen, in relation to the process?---Well, from reading up on how the process should go, there should be consultation. There should be finding out what the person's role is, what they actually do, looking for alternative jobs with them rather than emailing the day before, being more helpful for them to you know find another job especially an older person like myself. Yes, just the process, just really wasn't there. There was no process there. I was told the day before that there was a meeting and then that was it. I was told I was, "Pack your bags. You're leaving on the spot." So there was no process.” 4

[41] The Employer cannot be criticised for not informing the Applicant on 19 December 2013 because she was preoccupied with an unexpected family crisis. Consequently, it waited until the resumption of its operations in the new year.

[42] While the Applicant claims she was unaware of the purpose of the meeting on 9 January 2014, I consider that her knowledge of the meeting was most probably best expressed as follows:

“THE COMMISSIONER: Ms Millen, in the ordinary course of everyday work if somebody invites you to a meeting and advises you to bring a support person did you not inquire as to what the meeting was about?---I did and that's why she said you will find out tomorrow. I mean I - you know, I thought well, it's got to be quite serious. It's either a performance management issue or it's a termination or redundancy because you don't normally get asked to bring a support person just to any sort of meeting.” 5

[43] I take comfort in my view above because in examination in chief, the Applicant gave the following evidence:

“...There was a discussion back in November, November, December that the position was going to be made redundant. There was no evidence that there was any jobs you know looked - alternative work for me.” 6

[44] The Employer concedes that its “consultation process was not drawn out”. While the Employer describes the meeting as “consultation”, in my view, it was principally informing the Applicant that a decision had been made to abolish her position and reasons for abolishing the position.

[45] I am not required to determine each and every contested fact in these proceedings. However, I am satisfied that the discussion on 9 January 2014 was not as short and brutish as “pack your bags - you’re going”. However, I am also of the view that it was not the fulsome discussion it could have been.

[46] The Applicant infers that any such discussion as the abolition of a position should be a matter of negotiation with the occupant. In this respect, the Applicant misapprehends the legislation. While the Applicant would obviously prefer her employment to continue, unfortunately, employers have in the past created and abolished positions, and will continue to do so in the future as they adapt to prevailing business circumstances.

[47] Notwithstanding the brevity of the consultation, I am unable to determine that the Employer had an obligation under a modern award or enterprise agreement to consult with Ms Millen.

s.389(2) - was it reasonable in all the circumstances for Ms Millen to be redeployed within the Employer’s enterprise or associated entities (if any)

[48] In this application, the Applicant refers to an advertisement by the parent company approximately three weeks after she was made redundant and a position which Ms Millen applied for in March 2014. The Applicant infers that these positions were suitable positions for redeployment.

[49] The evidence is that Ms Smith sent an email to three (3) persons both within the enterprise and its parent company regarding redeployment opportunities. Two of the persons were regional human resource personnel and the other a national Human Resource Manager. The email explained the circumstances and sought whether a suitable position was available within their organisations as an alternative to Ms Millen’s redundancy. All three recipients of the email from Ms Smith replied that there were no suitable positions available. One recipient advised that her organisation had recently also made redundant an administrator position.

[50] The tense of s.389(2) of the FW Act is that a person’s dismissal was not a case of genuine redundancy if, at the time of the dismissal, it would have been reasonable in all the circumstances for the employee to be redeployed within the employer’s enterprise or entities.

[51] There is a tendency of applicants generally to consider that if an alleged suitable position becomes available subsequent to their redundancy, it should have been available at the time of their redundancy. That is not the case.

[52] The legislation does not merge the time at which a redundancy occurs with suitable positions becoming available in the future. To do so would invite the obvious difficulty of determining when future potential suitable redeployment positions would cease (if at all) for the purposes of the meaning of genuine redundancy.

[53] I find that, in all the circumstances, it was not reasonable for Ms Millen to be redeployed within the Employer’s enterprise or associated entities.

CONCLUSION

[54] For the above reasons, I am satisfied that Ms Millen’s dismissal was a genuine redundancy and consequently, she is not protected by Part 3-2 Unfair dismissal provisions of the FW Act. Accordingly, the application must be dismissed. An order to this effect is issued jointly with this Decision.

COMMISSIONER

Appearances:

Dr V Marshall for the Applicant.

K Fechner on behalf of the Respondent.

Hearing details:

2014:

Perth,

15 July.

 1   Transcript PN63

 2   Transcript PN70

 3   Transcript PN115

 4   Transcript PN123

 5   Transcript PN93

 6   Transcript PN27

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