Ms Yoon Jeong (known as Joanne) Ho v Double Trading Pty Ltd T/A Windmill Toys

[2014] FWC 5713

[2014] FWC 5713

FAIR WORK COMMISSION

DECISION

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

Ms Yoon Jeong (known as Joanne) Ho
v
Double Trading Pty Ltd T/A Windmill Toys
(U2014/753)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 21 AUGUST 2014

Application for relief from unfair dismissal - small business employer - genuine redundancy.

[1] Ms Ho has lodged an application for an unfair dismissal remedy pursuant to s394 of the Fair Work Act 2009 (the Act).

[2] I heard this application in Sydney on 7 and 8 July 2014.

[3] Ms Ho was represented by Mr P Howell. Double Trading Pty Ltd T/A Windmill Toys (Double Trading) was represented by Mr T Saunders of Counsel.

[4] Ms Yoon Geong Ho 1, Ms Suk Jin Lee2, Mr Gak Hee Lin3 and Ms Juhee Lee provided statements.4

[5] I am satisfied and find that: Ms Ho's application was lodged within the time specified by the Act, that at the date of dismissal Ms Ho was a person protected from unfair dismissal, that Double Trading was a small business employer as defined by the Act and that, as a small business employer, Double Trading was obliged to comply with the Small Business Fair Dismissal Code (the Code).

[6] Double Trading objected to the jurisdiction of the Fair Work Commission to hear this application because, in its submission, Ms Ho’s dismissal from its employment was a genuine redundancy as defined in s389 of the Act. Section 389 of the Act is set out below.

“ (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.”

[7] My findings on the factual background to this application and the disputed contentions of the parties are set out below.

[8] Ms Ho was employed as an office administrator by Double Trading, working for a Mr Lin and his wife, Mrs Lee, from 6 July 2007 until 28 February 2014. Double Trading originally only sold souvenir toys under the business names of Windmill Toys and Toy Hut Co. In late 2008 sales within the Double Trading business were in decline. During this period Mrs Lee began a new business venture entitled Evergreen Distribution Pty Ltd (Evergreen Distribution). Evergreen Distribution delivered milk to a variety of businesses within the North Sydney Region. Ms Ho then undertook administrative responsibility for Evergreen Distribution in addition to her existing administrative responsibility for Double Trading.

[9] I am satisfied and find that Ms Ho found the dual enterprise responsibilities increasingly onerous. A number of disputes arose between Ms Ho and Mrs Lee regarding the completion and prioritisation of work duties by Ms Ho. In particular, disputes arose between Mrs Lee and Ms Ho regarding the collection of outstanding amounts owed to the business by customers of Evergreen Distribution.

[10] I am satisfied and find that Ms Ho’s administrative workload was increased by the new undertaking Evergreen Distribution. On balance I am satisfied and find that, by the end of 2013, the workload arising from both enterprises required approximately 1.5 full-time equivalent employees. I am satisfied that Ms Ho worked unpaid overtime to complete these duties. As a result I am satisfied and find that there was a change in the operational requirements of the enterprises conducted by Mr Lin and Mrs Lee. Mr Lin and Mrs Lee gave evidence that in September 2013 they made a definite decision to re-structure their business operations and split the office administration responsibilities into two separate part-time jobs, although they did not resolve the exact date of implementation.

[11] On 22 January 2014 Ms Ho and Mrs Lee became involved in an argument regarding Ms Ho’s work performance. It was on this occasion that Mrs Lee informed Ms Ho that she and her husband intended to split the work load of the two businesses into two part-time jobs. Mrs Lee informed Ms Ho that she would be seeking to employ one other person as an office administrator. Mrs Lee offered Ms Ho one of the two available part-time positions as an office administrator. In the period following this altercation Mr Lin asked Ms Ho to consider accepting one of the part-time positions. He suggested that, over time, as business increased, the positions might become full-time again. Ms Ho rejected both Mrs Lee’s initial offer and Mr Lin's subsequent offer because the remuneration for either of the part-time positions was insufficient for her purposes.

[12] As suggested by Mr Howell, it was possible for Mr Lin and Mrs Lee to have hired a new employee to perform a part-time position to perform the additional administrative duties that had become necessary by the creation of the new enterprise Evergreen Distribution. That choice would have meant that Ms Ho kept her full-time position and that the new employee performed the 0.5 part-time role. Both persons would have performed work for both enterprises. Whilst this option was a possibility, Double Trading was not obliged to conduct its business in that fashion if it was not its preference.

[13] Mr Lin and Mrs Lee did not take that option. Having regard to the different work required for the toy business and the milk distribution business, including the different hours of work, they decided that the best outcome for their operational requirements was to have two different people performing the administrative work of the two businesses.

[14] Mr Howell submitted that Double Trading's decision not to divide its administrative work into a single full-time equivalent position and a part-time position was harsh, unjust or unreasonable because it arose from Mr Lin’s and Mrs Lee’s realisation that they could not force the applicant to perform two jobs for the wages of a single job; as a response to Ms Ho’s combative attitude towards Mrs Lee; and because they did not recognise or value Ms Ho’s six and a half years of loyal service.

[15] I accept the evidence of Mr Lin and Mrs Lee that they considered that it would be in the best interests of their business to address this issue after the Christmas period although it would have been preferable if Mr Lin and Mrs Lee had given Ms Ho advance notice of the first restructure and had involved Ms Ho in that discussion.

[16] I am satisfied and find that Ms Ho was employed to perform clerical work or administrative work of a clerical nature and that her employment was covered by the Clerks – Private Sector Award 2010 (the Award). 5

[17] Mrs Lee's timing of the announcement of this major change to the organisational structure of Double Trading was unfortunate and inconsiderate. However I am satisfied and find that, despite the circumstances, Mrs Lee notified Ms Ho of Double Trading's decision as required by the Award and discussed the change prior to its implementation.

[18] I have considered the evidence concerning the arrangements at Double Trading subsequent to Ms Ho's departure. I am not persuaded that the evidence demonstrates any lack of genuineness in the arrangements implemented by Double Trading.

[19] Having regard to the requirements of s389(1)(a) of the Act I am satisfied and find that because of the changes in Double Trading's operational requirements it no longer required the job of performing the administrative functions of both its toy business, and its milk distribution business, to be performed by anyone.

[20] Having regard to the requirements of s389(1)(b) of the Act I am satisfied and find that Double Trading did comply with its consultation obligations pursuant to the Award.

[21] Having regard to the requirements of s389(2)(a) and (b) of the Act I am satisfied and find that it would not have been reasonable in all the circumstances for Ms Ho to be redeployed within Double Trading's business.

[22] I am satisfied and find that the dismissal of Ms Ho arose from a genuine redundancy. The application is dismissed.

SENIOR DEPUTY PRESIDENT

 1   Exhibit H1

 2   Exhibit Double Trading 1

 3   Exhibit Double Trading 2

 4   Exhibit Double Trading 3

 5   MA000002

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