Ms Susan Wilson v North Rockhampton Bowls Club Inc
[2011] FWA 1928
•31 MARCH 2011
[2011] FWA 1928 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Susan Wilson
v
North Rockhampton Bowls Club Inc
(U2010/11273)
COMMISSIONER SIMPSON | BRISBANE, 31 MARCH 2011 |
Application for unfair dismissal remedy - jurisdictional objection - genuine redundancy.
[1] On 5 August 2010 Ms Susan Wilson (“the Applicant”) made an application for an unfair dismissal remedy in accordance with section 394 of the Fair Work Act 2009 (“the Act”) against the North Rockhampton Bowls Club Inc (“the Respondent”). On 22 August 2010 the Respondent filed a Form 3 response to the application. Throughout proceedings the Applicant represented herself and the Respondent was represented by Mr Eric Porter of Clubs Queensland.
[2] A conciliation conference was conducted on 25 August 2010 which was unsuccessful. On 8 September 2010 a Form 4 objection to the application was filed on the grounds that the dismissal was a case of genuine redundancy.
[3] I issued directions on 4 November 2010 for the matter to be heard at 10am on Tuesday 14 December 2010 in Rockhampton. At the conclusion of the hearing that day I requested further material in regard to a number of issues. I issued further directions on 21 December 2010, listing a further hearing day on 28 January 2011 and setting out the nature of the additional material. The hearing day was amended to Friday 4 February 2011.
[4] On the basis of an agreement between the parties as proposed at the hearing of 4 February 2011 I agreed for both parties to put on some further statements regarding the issue of the position description of the role that was fulfilled by the Applicant before she was terminated.
[5] I issued directions for the filing of that material and that a further hearing would be conducted on Wednesday 23 February 2011.
[6] Section 396 of the Act requires that I must decide in this case whether the dismissal was a genuine redundancy before considering the merits of the application.
EVIDENCE
[7] It is common ground between the parties that the Respondent is a small business employer. 1 It was also accepted by the Respondent that the Applicant was covered by a Modern Award2 and therefore the requirements of section 389(1)(b) would be a relevant factor.
[8] The Applicant worked as the Manager for the North Rockhampton Bowls Club from April 2006 until August 2010. 3
[9] In 2007 and 2008 there was no nomination for the position of Club Secretary and in these years the Applicant was called upon to act as the Club Secretary. 4
[10] The Applicant stated that in 2009 Mr Geoff Horston nominated for the role of Secretary. 5 The Applicant stated that Mr Horston had a problem with her and had written letters of complaint about her.6 The Applicant also drew attention to what she saw as his prejudice against her in his letter of resignation as Secretary tendered on 26 January 2010.7 This resignation was subsequently withdrawn.
[11] The Applicant referred to a letter of complaint Mr Horston had written about her in 2007. 8 The Applicant referred to a further letter of complaint Mr Horston had written about her on 19 January 2010 alleging she had verbally abused him.
[12] The Applicant became aware that a petition was being circulated by Mr Rod Jensen, a member of the Club, in early 2010 calling for a Special General Meeting to discuss the position of Manager. 9
[13] The Applicant states that Mr Rod Jensen supported the taking up of a petition to have a Special General Meeting, as the Applicant had brought to the attention of the President and Senior Vice President of the Club the fact that Mr Jensen was misusing a swipe card points system used to purchase drinks.
[14] The Applicant states that she was not informed about the Special General Meeting by the President and that the meeting was held in her absence and she was not given an opportunity to have input in relation to the decision. 10
[15] The Applicant in submissions referred to an advertisement placed in seek.com.au on 23 June 2010 for the Secretary/Manager role at the Club which was identical to the role responsibilities of the Manager position she held. 11
[16] The Applicant states that she was sent a letter by Geoff Horston on 25 June 2010 advising that her job had been made redundant and to reapply for the proposed new position of Secretary/Manager. The Applicant submitted an application but believed that when she discovered Mr Horston was on the selection panel she did not have a chance. 12
[17] The Applicant states that in August she was approached by the Club President Mr Paul Cook who apologised to her and advised that she had not been successful. She claims that she reacted calmly to the news however said to Mr Cook that as he had the casting vote on the selection committee he had no reason to be sorry as he got what he wanted. 13
[18] The Applicant denies the claim in the statement of Mr Paul Cook that he had expressed an interest in employing the Applicant in another capacity, and also denies swearing at Mr Cook or expressing anger at the decision. 14
[19] The Applicant received a letter of termination on 5 August 2010 and says that no offer was made for redeployment. 15
[20] The Applicant alleges that the redundancy was a scheme “cooked up” by certain members of the Club to get rid of her for personal reasons. 16
[21] The Applicant’s primary argument was that her termination was not a redundancy and that her termination occurred because she had an altercation with Mr Geoff Horston (Club Secretary). 17 The Applicant believes that this altercation precipitated a decision to make the Manager role redundant and to create a new Secretary/Manager position.
[22] In addition to giving evidence on her own behalf, the Applicant called Mr Brian Tiegs who provided a brief statement 18 that he overheard a conversation between Mr Horston and Mr Cook where he claims it was said that “we will get rid of the bitch”. Mr Tiegs claimed Mr Horston was “stirring people up”.
[23] The Applicant also called Mr John Freeman who provided a brief statement. 19 Mr Freeman was a former Junior and Senior Vice President. Mr Freeman’s evidence included that he had concerns which he raised with the President Mr Cook about Mr Horston being on the selection committee for the new position of Secretary/Manager. He referred to a monthly meeting where he claimed Mr Horston had said he wanted the Applicant out of the place.
[24] The Applicant’s final witness called at the hearing on 14 December 2010 was Mr Doug Simpson, a former Club President whose statement 20 makes generally positive comments about the Applicant in her role as the Manager and also refers to a conversation with a truck driver who had been involved in an altercation with the Applicant.
[25] At the initial hearing day on 14 December 2010, the Respondent called one witness, Mr Paul Cook whose statement 21 was focussed primarily on the sequence of events that led to the organisational change resulting in the Club Manager position being replaced with a position of Secretary/Manager incorporating the duties of the Secretary and the Manager.
[26] Mr Cook states that a petition was received and signed by sufficient members as required by the Club’s Constitution, requesting that the Secretary convene a Special General Meeting to discuss the position of Manager of the Club.
[27] Mr Cook states that meeting was called in accordance with the Constitution and a meeting was held on 18 April 2010 where members directed the Club’s Council to make the position of Manager and Secretary redundant and to engage an Employment Agency to conduct a recruitment and selection exercise to organise the appointment of a suitable person to a new position of Secretary/Manager.
[28] Mr Cook gave oral evidence that he personally advised the Applicant of the outcome of the Special General Meeting of Sunday 18 April 2010 the following morning. 22
[29] Mr Cook stated that the position was conveyed to the incumbent Secretary and the incumbent Manager and that Adecco Rockhampton, an employment agency was contracted to perform the task of shortlisting applicants for interview by the Executive of the Club.
[30] Mr Cook stated that two applicants were shortlisted, the Applicant and Ms Suzanne Lund. Following interviews the full Executive determined that Ms Lund was “the most meritorious”.
[31] Mr Cook stated that he advised Adecco that he wished to inform the unsuccessful candidate, the Applicant, prior to official notification, which he did. 23
[32] Mr Cook stated that the Applicant reacted in an angry manner. Mr Cook stated that he advised the Applicant that he valued her worth to the Club and was keen to retain her within the organisation in some capacity. 24 He states that the Applicant replied “What do you want me to be - a fucking barmaid again? Well, I am not interested.”25
[33] Mr Cook states that he asked the Applicant not to be hasty and to at least take time to think it over and consider the situation. He states that the Applicant reiterated that she was not interested in working in another position within the Club, and that he could understand that and accepted it. He states that she accepted her Notice of termination and was paid her full entitlements.
[34] During cross examination the Applicant put it to Mr Cook that she was never offered redeployment and Mr Cook maintained that he did state that “Angela is leaving in the next fortnight, I value your work and I’d like you to continue your work and activity with the organisation, and I’d like you to continue in some capacity.” 26
[35] At the conclusion of the hearing in Rockhampton on 14 December 2010 the Respondent undertook to provide;
(a) information in relation to the salary and classifications for the old and new positions,
(b) the position description as best as possible for the old position and the new position,
(c) a copy of the Constitution and rules of the Club ,
(d) a list of the differences between the old position and the new position, and
(e) minutes of executive meetings between January 2010 and termination of the Applicant.
[36] At the commencement of the next hearing day of 4 February 2011 the Respondent complained that they were disadvantaged by the fact that the Applicant had failed to comply with the directions issued on 21 December 2010 that the Applicant prepare a list of duties that she performed as Manager of the Club and that were to be served on the Respondent by 24 January 2011.
[37] The same directions order required that the Respondent provide the Applicant with its understanding of the job description undertaken by the Applicant. The Respondent was also to provide the Applicant with the details of the job description for the new Secretary/Manager role.
[38] The Respondent’s complaint was that the Applicant did not provide her response until 1 February 2011 and that it was clear from the Applicant’s material that she had compiled her draft of the duties she claims to have performed based on information supplied by the Respondent on 21 January 2011.
[39] As was requested by the Respondent and agreed by the Applicant I directed that the parties be given a further opportunity to put on brief statements going to the issue of the differences between the former role and the new role, to be filed by 16 February 2011, and that any cross examination of those witnesses if required would occur at a hearing on 23 February 2011.
[40] At the hearing on 23 February 2011 brief statements for the Applicant’s case were admitted into evidence uncontested from Mr Doug Simpson, 27 Mr Colin Russell28 and Mr John Freeman.29
[41] A concern was raised by the Applicant prior to the hearing on 23 February 2011 that some content within the three further statements of the Respondent sought to go beyond the directions which were to address issues regarding the difference between the former role and the new role.
[42] I advised that I did not intend to have regard to such further material in the witness statements of the Respondent beyond what was sought in the directions. The Respondent accepted that course and on that basis the Applicant did not contest the statements for the Respondent of Mr Geoffrey Horston, 30 Ms Tracey Kelly31 and Ms Corinne Cormick32 being admitted into evidence.
[43] The Applicant submitted that the decision to employee a Secretary/Manager contravened the Club’s Constitution at clause 5(f), 12(1), 12(3) and 22.
[44] The Applicant submitted that the Respondent breached its Constitution to avoid extensive consultation with the Applicant.
[45] The Applicant also submitted that the President was not empowered to make an offer of employment as Mr Cook claimed he did and that even had he done so she would have had to compete with other applicants.
[46] The Applicant also included as an attachment 33 to her original submissions correspondence forwarded by a Mr S.J McBean to the President of the Club alleging breaches of the Constitution at the Special General Meeting. Particularly, a concern was raised about Rule 12(2) in that the position of Secretary as a Member of Council must be a financial member nominated, seconded and elected at the Annual General Meeting.
[47] The Applicant states that she earned about $53,000 as the Manager. 34 The Applicant stated that she did not seek reinstatement and was seeking compensation as a remedy.35
CONSIDERATION
[48] In determining this application I must first determine the jurisdictional question as to whether the termination was a genuine redundancy.
[49] Section 389 of the Fair Work Act 2009 reads 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.
[50] From early in the proceedings I sought the assistance of the parties in making a comparison of the position description for the former position as compared to the newly created position. 36
[51] In assessing the requirements of whether the employer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise I have had regard to the minutes of the Special General Meeting. 37
[52] The minutes record that the meeting was attended by 46 members and considerable discussion and debate occurred regarding the merits of a Secretary/Manager role compared to the Manger role as it existed at the time.
[53] The matter was raised in the minutes that the Club had difficulties in the past getting volunteers for the Secretary role.
[54] The minutes included reference to a need for the Club to be run more professionally with increased legal and administrative requirements. The minutes also record the proposition that the position needed a clear job description in running the Club’s business and bowls areas.
[55] The resolution that is recorded in the minutes as being carried at the meeting was as follows;
“That position of manager of the North Rockhampton Bowls Club be made redundant and we engage an employment agency to interview for a qualified/experienced person for the position of Secretary/Manager. This process should come down to the final three applicants who will be interviewed by the Club executive for a final selection. The present Manager’s role will remain until a new Secretary/Manager is appointed.”
[56] It is clear that a decision was taken at the Special General Meeting to make the existing Manager role redundant however that decision was not to have effect until a new position had been appointed.
[57] A copy of an advertisement for the position was listed on seek.com.au on 23 June 2010. The advertisement said as follows;
“ Manager/Secretary
- Opportunity to grow your management career
-Iconic sporting club
- $55K + Super
....................................
NRCB is currently seeking applicants for the role of Manager/Secretary. Applicants will be assessed on their experience, knowledge and career achievements within business management.
Education and skills required:
• Years of related work experience
• Degree in business management or similar courses
• Business, marketing and management skills,
• Communication and interpersonal skills,
• Problem solving and analytic skills,
• Creativity, initiative and flexibility
Possession of Industry certificates/licenses are desirable but not essential.
Role Responsibilities include but are not limited to:
• Provide effective leadership and business direction,
• Maintain a sound knowledge of the beverage, food and gaming industries,
• Investigate possible opportunities for business growth,
• Monitor and manage the clubs overheads and expenses,
• Negotiation of supply arrangements and the general management of creditors,
• Create and maintain member/customer satisfaction through high levels of customer service and quality standards,
• Recruitment and training of employees,
• The effective delegation of responsibilities and authority to employees,
• Ensure that all activities undertaken at the club are in accordance with the statutory occupational health and safety requirements
To be considered for this role, you will have experience in developing and implementing improvements in service delivery, demonstrated skills in managing people including leadership, supervision and guidance to staff.
.......................................”
[58] The submission of the Respondent dated 21 January 2011 emphasised that from the Respondent’s perspective the new position was not just a combination of the previous duties of the Manager and Secretary roles but a new way of performing the roles and that the position would be strategic in combining all aspects of the Club including bowls, bar, catering and functions.
[59] The Respondent argued that the following duties of the new position were not performed in the old position:
(a) Development of long range and business plans,
(b) Training of staff, not just keeping a register of courses attended,
(c) Establishment of budgets, control costing mechanisms,
(d) Preparation of rosters,
(e) Payment of accounts, wages etc,
(f) Maintenance of financial affairs of the Club,
(g) Responsibility for workplace health and safety of all operations of the Club,
(h) Attendance of all Committee meetings to record proceedings and act on decisions of Committee,
(i) Responsible for record keeping of whole Club including bowls membership.
[60] The second statement of Mr Simpson 38 and the statements of Mr Russell39 and Mr Freeman40 in the main simply concur with the Applicant’s submission on what her duties as the Manager and Acting Secretary had been before her termination but did not in any significant way make comment on the difference between the former role and the new role.
[61] Mr Russell however attached to his statement a list of additional roles he had previously performed as the Treasurer which he understood are alleged to be currently performed by the current Secretary/Manager Suzanne Lund.
[62] The statement of Mr Horston 41 said as follows in relation to the new role,
“The committee at all times was looking to join the Bowling Club and the Business side of the Club as one, in the advertised position with Adecco we clearly stated that we were looking for a “Person to Monitor, and Manage the Clubs overheads and expenses” in essence budgeting. Ms Wilson was asked and admitted at her interview she had no budgeting experience in Club Management, this was carried out by the Treasurer. ..”
[63] Mr Horston said further,
“..The Treasurer had full control of the Club’s finances, and, with the new position, the responsibility for the financial management of the club has transferred to the new position - as was intended; ..”
[64] The remainder of Mr Horston’s statement deals with the difference between the roles in regard to the areas of training staff, finance, record keeping, compliance and general duties.
[65] The statements of Ms Kelly and Ms Cormick provide some further specific evidence comparing how recruitment and training occurred previously to under the current Secretary/Manager. Both statements support the evidence of Mr Horston that finance was previously the responsibility of the Treasurer.
[66] The Applicant in submissions made reference to a decision of Thatcher C in Doolan and others v Winderee Investments Pty Ltd and The Hastings Trust t/as City Toyota[2010] FWA 4236 where consideration was given to the credibility of the reasons given by the decision maker for the decision.
[67] The Applicant’s submissions focussed on the role of Mr Horston and to a lesser extent Mr Jensen. The Applicant submits it was Mr Horston who made the recommendation for the change, when there was a history of a poor relationship between the Applicant and Mr Horston and further Mr Horston was on the selection committee that determined who would be appointed.
[68] On the basis of the evidence I am satisfied that the Respondent no longer required the Applicant’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise. I am satisfied that the purpose and intended responsibilities of the Secretary/Manager role were quite different to that of the previous Manager role and this is supported by the minutes of the Special General Meeting and also the statements of the witnesses for the Respondent.
[69] The Applicant’s primary argument has always been that the redundancy was not genuine and was in truth a concoction of certain Club members who were motivated to engineer her removal. There is no doubt animosity existed between the Applicant and Mr Horston. Mr Tiegs gave evidence about a conversation he states he overheard between Mr Horston and Mr Cook going to this issue. Mr Freeman also gave evidence regarding Mr Horston’s attitude toward the Applicant.
[70] However, the Special General Meeting was conducted with 46 members present and the minutes indicate a genuine debate occurred about the merits of restructuring and the manner in which the Club was managed and how managerial roles should best be structured. While there is clear evidence that the relationship between Mr Horston and the Applicant was poor, ultimately the decision taken to make the Applicant’s role redundant was not taken by Mr Horston but by a Special General Meeting of the Club. I am not satisfied that the decision was a sham to remove the Applicant as she has alluded to.
[71] I can understand that the Applicant would have misgivings about Mr Horston’s role on the selection committee to fill the proposed new role given the history of their relationship, and further there was good reason for the Applicant to believe that Mr Horston should have withdrawn from participating in the selection process.
[72] However the fact is Mr Horston was the Secretary of the Club at the time and the selection panel was to be made up of the Executive. His participation does not of itself change my view that the Respondent no longer required the Applicant’s job to be performed by anyone due to operational requirements.
[73] The consultation provisions in the Registered and Licensed Clubs Award 2010 (“the Award”) are found at clause 8 of the Award. It is clear that the employer had taken a decision at the Special General Meeting to implement a change that falls within the meaning of major workplace change as defined in clause 8.1 of the Award.
[74] The questions relevant in this matter are did the employer discuss with the Applicant the introduction of those changes, their effect, measures to avert or mitigate the adverse effects and did the employer give consideration to matters raised by the Applicant regarding the change. Further, did discussions commence as early as possible and did the employer provide in writing all relevant information about the change.
[75] There are disputed facts between the parties regarding this question. Mr Cook claimed that following the meeting on 18 April the decision was conveyed to the Applicant. 42 Mr Cook gave oral evidence that he personally advised the Applicant of the outcome of the Special General Meeting on Sunday 18 April 2010 the following morning.43 The Applicant disputes this.
[76] The Respondent through Mr Horston sent correspondence to the Applicant dated 25 June 2010 advising her of the decision of the Special General Meeting and notifying her of the contact details for the person engaged by the Respondent to carry out recruitment for the new position.
[77] The correspondence encouraged the Applicant to apply for the position and advised that her current position of Manager will continue until the new position of Secretary/Manager was filled.
[78] The Applicant strongly contests the claim of the Respondent that the Respondent expressed to the Applicant an interest in employing her in another capacity. 44 Mr Cook’s oral evidence in regard to whether he did or did not offer to redeploy the Applicant45 and the Applicant’s cross examination of him on this point leads me to conclude that on the balance of probabilities Mr Cook did attempt to have a conversation with the Applicant about the prospect of alternative employment working at the bar within the Club.
[79] I prefer Mr Cook’s evidence to the Applicant’s on this issue as the evidence of Mr Cook is more detailed about what was said, specifically with reference to ‘Angela’s job’. 46 It is my impression that the Applicant’s claim that she was not offered re-deployment may be technically correct in that Mr Cook may not have in a formal sense make a firm offer of an alternative job, however at the same time Mr Cook’s attempts to open up a discussion about possible alternative employment within the Club were not taken up by the Applicant.
[80] I have formed the view on balance that this is the most likely sequence of events on the basis of the evidence and the demeanour of the witnesses. It is my impression that Mr Cook was a credible witness with a reasonably clear recollection of the discussion. The exchange between the Applicant and Mr Cook while he was under cross examination persuades me that the Applicant was focussed on making the point that a formal offer was not made, but I am not convinced that Mr Cook did not seek to raise the prospect of other employment. It is not contested that the Respondent wrote to the Applicant on 25 June 2010 advising her of the developments and inviting her to apply for the proposed new role.
[81] On that basis I am satisfied that the Respondent has satisfied the requirement to consult about the redundancy as required by s.389(1)(b).
[82] Was it reasonable in all of the circumstances for the Applicant to be redeployed into the new role?
[83] In Ulan Coal Mines Limited v Honeysett and other[2010] FWAFB 7578 the Full Bench said as follows at paragraph 28;
“..The question remains whether redeployment within the employer’s enterprise or the enterprise of an associated entity would have been reasonable at the time of dismissal. In answering that question a number of matters are capable of being relevant. They include the nature of any available position, the qualifications required to perform the role, the employee’s skills, qualifications and experience, the location of the job in relation to the employee’s residence and the remuneration which is offered...”
[84] Further at paragraph 34 the Full Bench said as follows;
“.It may be appropriate to make some concluding remarks about the operation of s.389(2). It is an essential part of the concept of redeployment under s.389(2) that a redundant employee be placed into another job in the employer’s enterprise as an alternative to termination of employment. Of course the job must be suitable, in the sense that the employee should have the skills and competence required to perform it to the required standard either immediately or with a reasonable period of retraining. Other considerations may be relevant such as the location of the job and the remuneration attaching to it. Where an employer decides that, rather than fill a vacancy by redeploying an employee into a suitable job in its own enterprise, it will advertise the vacancy and require the employee to compete with other applicants, it might subsequently be found that the resulting dismissal is not a case of genuine redundancy. This is because it would have been reasonable to redeploy the employee into the vacancy. In such a case the exception in s.385(d) would not apply and the dismissed employee would have the opportunity to have their application for a remedy heard....”
[85] The minutes of the Special General Meeting do not record any debate about whether it was appropriate to redeploy the Applicant into a new Secretary/Manager role as an alternative to advertising the new role. There is no evidence from the Respondent about whether this option was considered. It appears to be the case that it was generally decided to advertise the role and that the Applicant would be invited to apply for the role.
[86] The inference that I have from the evidence is that it appears to have been assumed that due to the nature of the change in the role that the position would have to be advertised. The fact that the minutes reveal that there was debate about the merit of combining the roles of Secretary and Manager into one role, but no recorded discussion about whether the Applicant could redeploy into the new role makes clear that by passing the resolution the meeting at the same time was also taking a decision not to offer to redeploy the Applicant into the new role that it was deciding to create.
[87] Was that a reasonable decision? In my view it was on the basis of my findings above that the change from the old role to the new role was sufficiently different, broader and requiring particular skills that the Respondent was entitled to determine whether a more suitable candidate then the Applicant wished to apply for the position. The Respondent has also made submissions that the new role receives higher remuneration on the basis of the changed nature of the position.
[88] The Applicant pointed out in her original submission filed in December 2010 that she had acted as the Secretary in 2007 and 2008. It is the Applicant’s case that the ‘operational requirements’ supplied by the Respondent did not necessitate termination of the Applicant’s employment, considering the Applicant’s experience in both roles of Manager and Secretary and the minor nature of the Secretary duties.
[89] The Applicant maintained that the only difference between what she did in the former Manager role and the new Secretary/Manager role is the Treasurer role. 47 I disagree with this view. For reasons that I have detailed above in examining whether the requirements of s.389(1)(a) have been satisfied, I am also of the view that the extent of the change in the nature and responsibilities from the former Manager role to the new Secretary/Manager role was significant enough to justify the decision of the Special General Meeting to advertise the role. My view on this was reinforced by the evidence in the witness statements of the Respondent admitted into evidence at the hearing on 23 February 2011, regarding the differences between the roles.
[90] The Applicant also claimed that the decision to create a Secretary/Manager role was unconstitutional. 48 The Respondent provided a copy of the Club’s Constitution and By-Laws.
[91] At a Special General Meeting a decision was taken to make the existing role of Manager redundant, and to create a new position of Secretary/Manager with broader responsibilities and accountabilities. It appears to me the meeting was duly authorised and was entitled to deal with the resolution put before it.
[92] On that basis I do not agree that the Club was acting outside its Constitution by advertising and filling the role of Secretary/Manager which it ultimately did.
[93] A further question was raised as to whether the petition signed by 17 members of the Club satisfied the requirements of the Constitution. It appears to me the submission the Applicant was making on this point was directed to the requirements for the calling of a Special meeting of the Council, rather than a Special General Meeting. It appears to me the steps taken were in keeping with the requirements of the Constitution and By-Laws.
[94] I have had regard to all of the evidence and submissions of both parties and for all of the reasons set out above I am satisfied that the Applicants dismissal was a case of genuine redundancy. Having arrived at that view I have no jurisdiction to further consider the merits of the Application and it must be dismissed.
COMMISSIONER
1 Transcript dated 14 December 2010 at PN 510-516.
2 Transcript dated 14 December 2010 at PN 58-59.
3 Exhibit 1 Paragraph 2.
4 Exhibit 1 Paragraph 3.
5 Exhibit 1 Paragraph 4.
6 Exhibit 1 Paragraph 11.
7 Applicant’s Original Submission Attachment C.
8 Exhibit 1 Paragraph 12.
9 Exhibit 1 Paragraph 15.
10 Exhibit 1 Paragraph 18.
11 Applicant’s Original Submission Paragraph 12, Attachment D.
12 Exhibit 1 Paragraph 20.
13 Exhibit 1 Paragraph 21.
14 Transcript dated 14 December 2010 at PN 137-141; Exhibit 1 Paragraph 22; Applicant’s Original Submission Paragraph 15.
15 Applicant’s Original Submission Paragraph 16.
16 Exhibit 1 Paragraph 24.
17 Transcript dated 14 December 2010 at PN 107.
18 Exhibit 2.
19 Exhibit 3.
20 Exhibit 4.
21 Exhibit 5.
22 Transcript dated 14 December 2010 at PN 377.
23 Transcript dated 14 December 2010 at PN 383; Exhibit 5 Paragraph 7.
24 Transcript dated 14 December 2010 at PN 384; Exhibit 5 Paragraph 7.
25 Transcript dated 14 December 2010 at PN 390; Exhibit 5 Paragraph 7.
26 Transcript dated 14 December 2010 at PN 403.
27 Exhibit 6.
28 Exhibit 7.
29 Exhibit 8.
30 Exhibit 9.
31 Exhibit 10.
32 Exhibit 11.
33 Applicant’s Original Submission Attachment G.
34 Transcript dated 14 December 2010 at PN 182.
35 Transcript dated 14 December 2010 at PN 184.
36 Transcript dated 14 December 2010 at PN 79.
37 Exhibit 5 Attachment E.
38 Exhibit 6.
39 Exhibit 7.
40 Exhibit 8.
41 Exhibit 9.
42 Exhibit 5 Paragraph 4.
43 Transcript dated 14 December 2010 at PN 377.
44 Exhibit 1 Paragraph 22.
45 Transcript dated 14 December 2010 at PN 382-416.
46 Transcript dated 14 December 2010 at PN 403; PN 415.
47 Transcript dated 23 February 2011 at PN 681.
48 Transcript dated 4 February 2011 at PN 619.
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