[2016] FWC 1689 [Note: An appeal pursuant to s.604 (C2016/3380) was lodged against this decision and the order arising from this decision - refer to Full Bench decisions dated 2 June 2016 [[2016] FWCFB 3345] and 25 July 2016 [[2016] FWCFB 4675] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nick Tsiftelidis
v
Crown Melbourne Limited
(U2015/5662)

COMMISSIONER CRIBB

MELBOURNE, 24 MARCH 2016

Application for relief from unfair dismissal - jurisdiction - genuine redundancy - application dismissed.

[1] Mr Nick Tsiftelidis (Applicant) has made an application, under section 394 of the Fair Work Act 2009 (the Act), for an unfair dismissal remedy in relation to his dismissal by Crown Melbourne Limited (the employer, Crown, Respondent).

[2] On 10 June 2015, the company filed a jurisdictional objection on the grounds that the Applicant’s dismissal was a case of genuine redundancy. The jurisdictional objection, together with the merits of the application, were heard together on 9 September 2015 and 1 October 2015. Written closing submissions were filed by the Respondent on 2 November 2015 and by Mr Tsiftelidis on 23 November 2015. The company filed its Submissions in Reply on 7 December 2015.

[3] Ms Williamson, in-house counsel, appeared for Crown whilst Mr Tsiftelidis appeared on his own behalf.

[4] This decision deals, in the first instance, with Crown’s jurisdictional objection. If necessary, the substantive application by Mr Tsiftelidis for an unfair dismissal remedy will be dealt with after that.

1. Was Mr Tsiftelidis’ dismissal a case of genuine redundancy?

[5] Section 385 of the Act provides that:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

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

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[6] In relation to the meaning of ‘genuine redundancy’, The Act provides 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.”

[7] I will deal with each of these requirements in turn.

(a) Section 389(1)(a) - no longer required the job to be performed

Submissions and evidence

Crown

Submissions

[8] It was submitted on behalf of Crown that the role of Sports Consultant at the Crown Promenade Deck (the Deck) was no longer required to be performed due to the company’s operational requirements and the needs of the Promenade Hotel business. It was stated that there was only one position of Sports Consultant as there had been a previous reduction from three positions to one position due to natural attrition. 1 Crown explained that the reason the two Sports Consultants were not replaced was because the personal training component of the role was not being utilised. It was argued that the personal training component was a core function of the role of a Sports Consultant.2

[9] Crown explained that a lengthy review of the operations of the Deck commenced around May 2014 as a result of a change in the business model and in guest requirements for personal training services. It was stated that the review found that the demand from guests of the Promenade Hotel for personal training was either rare or non-existent. The review was said to have recommended that the position of Sports Consultant was no longer required as it was not a viable financial or commercial option to maintain that role. 3

[10] Crown indicated that at the conclusion of the review in early April 2015, the decision was made that the full-time position of Sports Consultant at the Deck was no longer required. It was stated that some of the tasks that Mr Tsiftelidis was performing (the provision of food and beverage) was still required but not on a full-time basis. As a consequence, Mr Tsiftelidis’ position (level 5 under the Crown Melbourne Limited Enterprise Agreement 2013 4 (the Agreement) was replaced with two part-time food and beverage attendants (level 2) who could be rostered on at the required times.

[11] It was stated that it was a matter of economics and flexibility of rostering as the cost of two food and beverage attendants, rostered on a part-time as needs basis, cost less than a full-time Sports Consultant where Crown was required to provide that position with 38 hours per week of work. Therefore, it was submitted that it was a different staffing structure that was implemented following the review, in terms of numbers, classifications and hours required. 5

Evidence

[12] It was the evidence of Ms Scarlett that:

Mr Tsiftelidis started as a casual employee and was promoted to a full-time sports consultant at the Promenade Leisure Centre, Crown Promenade Hotel. 6

The review of the Deck (where the Leisure Centre is) commenced around mid 2014 and took several months. The review needed to look at a number of factors as the business model had been shifting for quite some time. The pattern of what the guests were doing and what their needs were had been changing for a significant period of time. The company needed to look at all of the factors and what the best model was for Crown Promenade Hotel. It was both an internal and an external review. 7

It was stated that the demand for personal training services at Crown Promenade had decreased and that the number of sports consultants had also decreased through natural attrition. Ms Scarlett explained that, as far as she was aware, when a Sports Consultant had resigned, that role was not replaced because there was not as much of a need for that service as when those individuals had first been employed. When each of the Sports Consultants resigned, Crown had looked at the number of services that were required and could not justify replacing those Sports Consultants because there would not be the work to give them. It was recalled that it would have been approximately two years ago when the first of the three Sports Consultants left and the business decided not to replace that person. 8

It was indicated that the business model going forward was premised on going back to the guest experience and the need was that guests certainly wanted to be able to order food by the pool including coffee. Ms Scarlett explained that, therefore, the business needed food and beverage attendants to provide those duties. This had resulted in the placement of food and beverage attendant roles whilst the role of the Sports Consultant was made redundant. Ms Scarlett stated that the restructure enabled the business to put food and beverage attendants there just to be able to provide those duties, which were to take customers’ orders. 9

Prior to the restructure, there were no food and beverage attendants. It was stated that there were receptionists and Sports Consultants who, from time to time, took orders from customers. Ms Scarlett explained that when the model was finalised, the guests required somebody to be able to provide those food and beverage services but not a personal training service. 10

It was explained that the market mix at Crown Promenade Hotel had changed over the past decade and that the guests at Crown Promenade were different to those at who stayed at Crown Towers and Crown Metropol. Ms Scarlett stated that the Crown Promenade was built in 2004 and the Crown Metropol was built in 2010. Prior to the opening of the Crown Metropol, a great number of guests who were not staying in the Crown Towers (the flagship hotel, stayed at the Crown Promenade. When the Crown Metropol opened, those guests then shifted to Crown Metropol. This meant that there were less and less high-end gaming guests at Crown Promenade. It was stated that the guests at Crown Promenade are predominantly leisure and business guests. With the change in the client type and their needs, at Crown Promenade, it was said that the business model changed to reflect that. 11

The final decision was made very close to the date that Mr Tsiftelidis was advised. Crown advised the employees impacted as soon as the final decision had been made. There was not a particularly long period of time between when the final decision was made and when Mr Tsiftelidis was advised on 14 April 2015. Ms Scarlett stated that the final decision would have been made within days, if not weeks, prior to that date when it was understood what the structure would look like moving forward. 12

In answer to the question as to whether there was a report and recommendations resulting from the review, Ms Scarlett stated that there were numerous meetings with minutes taken of the meetings.

Those who undertook the review were the General Manager of Crown Promenade Hotel and the Chief Operating Officer for Food and Beverage and Hotels at Crown Melbourne. In addition, advice was sought from the health and safety area as well as from the legal department. 13

The ultimate final decision in relation to the restructure came from the General Manager of the Promenade Hotel as well as the Chief Operating Officer of the Hotel. 14 The decision was made following recommendations in relation to health and safety and from the leaders of the business group in relation to other aspects of the operations of the Deck.15 In addition, the General Manager of Commercial made a recommendation from a commercial perspective that it was not a viable option to have the role of Sports Consultant in the structure as it was not required because of the needs of the business.16

It was stated that the core function of the Sports Consultant position (to provide advice and assist with personal training) was no longer required at Crown Promenade. This was the role that Mr Tsiftelidis was hired to perform. 17 Ms Scarlett indicated that Mr Tsiftelidis would have also been involved in other areas e.g. customer service, taking food and beverage orders from time to time and other aspects that sat outside the core function of personal training which he was hired to provide.18

Ms Scarlett agreed that there were aspects of the roles of the other members of the team that Mr Tsiftelidis was performing as well. She was unable to say if the others’ roles and his role were identical, rather, there was an overlap in that there were certain tasks that Mr Tsiftelidis performed that others were also performing. However, Ms Scarlett did indicate that the non personal training duties that Mr Tsiftelidis performed would have been the same as others who were in that space. 19

Following the restructure, Mr Tsiftelidis’ non-core functions were absorbed by other areas e.g. the food and beverage attendants take the food and beverage orders and the receptionists answer general queries from customers. 20 Ms Scarlett indicated that two or three part time food and beverage positions were created who were rostered on in the peak times. During the quieter times, there would be one food and beverage attendant and a receptionist.21 Previously, the staffing might have been a receptionist and a Sports Consultant on busier days. On quieter days, there was one Sports Consultant rostered on.22

It was Ms Scarlett’s understanding that the role of the food and beverage attendant is to provide services to guests in relation to taking orders for Food and beverage and providing them with these items. 23 Further, in relation to pool testing, Ms Scarlett was aware that it was one of the duties that was performed by receptionists and Sports Consultants. Ms Scarlett did not know whether the food and beverage attendants now performed that function.24

Ms Scarlett agreed that, after Mr Tsiftelidis’ position as Sports Consultant was made redundant, other individuals/roles were placed there which included food and beverage attendants. Ms Scarlett stated that these would have been the same roles that Mr Tsiftelidis had been offered as redeployment. Ms Scarlett thought that existing employees had transferred into those roles. 25

It was stated that Crown Promenade no longer provided personal training services to guests. Ms Scarlett could not recall the exact date but said that the pool closed around April for a period of time for some maintenance work. When the pool reopened shortly after, the personal training service was no longer provided for guests. 26

Ms Scarlett agreed that, just prior to Mr Tsiftelidis being made redundant, he was not doing much personal training. Further, Ms Scarlett indicated that there was a significant decrease in the customer base in relation to his core role. Although from time to time there were guests who would have required personal training assistance, there was not enough to maintain that model moving forward. 27

It was confirmed that, in November 2014, Mr Tsiftelidis advised her that he had a number of concerns in relation to his manager. It was stated that she and Mr Tsiftelidis then spent some time trying to work out the process and it got to a place where Mr Tsiftelidis requested that Mr Moore advise him of what he (Mr Moore) was willing to do about his complaint. Ms Scarlett recalled advising Mr Tsiftelidis that if he wanted to make a formal complaint, together with examples, Crown would investigate the allegations. Ms Scarlett stated that Mr Tsiftelidis’ response, in February 2015, was that he would be escalating the matter to the Fair Work Commission. As Mr Tsiftelidis had not provided information (examples) so that his allegations could be investigated, she was unable to investigate the matter. 28

Ms Scarlett denied that Mr Tsiftelidis’ complaint had influenced management to make his position redundant. She stated that the redundancy was about the position and only about the position - in relation to the structure of the Hotel resulting from the needs of the business. 29

She was aware that Mr Tsiftelidis was escorted/walked off the premises after the meeting. 30

[13] Ms Momesso gave evidence that:

She was aware that there was talk about an operational restructure but she was not privy to any of those discussions and was not aware of what that entailed. She was advised by Ms Scarlett, a few days prior, that a decision had been made and was told who was going to be affected by the restructure. 31 Ms Scarlett said to her that she was going to be speaking to the union.32

She called Mr Tsiftelidis at about 9.30am on 14 April 2015 to have a meeting regarding organisational restructuring. The meeting was held at about 11.30am. 33

During the meeting on 14 April 2015, she had consulted with Mr Tsiftelidis and had advised Mr Tsiftelidis that his role, specifically the services of a Sports Consultant, was no longer required due to operational changes at the Deck. Ms Momesso stated that Mr Geerlings (Rooms Division Manager at Metropol) was also present at the meeting and was in attendance to answer any questions that Mr Tsiftelidis might have had about changes to Crown Promenade and the Deck. 34 Ms Momesso was not 100% sure if Mr Geerlings was part of the group who made the restructuring decisions but, she assumed that, as he was part of the senior management team, he would have been made aware of what was happening.35

During the meeting, she had given Mr Tsiftelidis a brief outline that the organisation had looked at restructuring and that there were some changes and that the services provided by the Sports Consultant at the Deck were no longer required. Ms Momesso said that she had briefly touched on the needs of the business which were shifting. This was because there was no longer a requirement to tailor packages for members as there was not a great need for them to have personalised training. It was stated that guests who stayed at the Hotel Promenade were still able to use the pool and gym facilities. 36

During the meeting, she was probably not that specific when she spoke about the services. Ms Momesso said that she had stated that the services conducted by a sports consultant were no longer required. 37 The reason for not providing any further explanation than this about the restructure was because she had not been involved in the meetings and did not know all of the legalities regarding the restructure. 38

Ms Momesso indicated that the whole scenario of the restructuring was only very quickly explained during the meeting and that she did not go into depth. 39

It was a commercial decision that Mr Tsiftelidis’ role was no longer required. This was because people were not coming to the Deck at Crown Promenade to use the facilities or the services of a Sports Consultant to have packages tailored regarding their fitness. Ms Momesso stated that this was probably not explained in that detail to Mr Tsiftelidis during the meeting. 40

There may have been personal training (sports consultancy services) provided at Crown Promenade on very rare occasions as not a lot of Crown Promenade guests availed themselves of that service. 41

Ms Momesso did not find it strange that only one individual was made redundant at the Deck out of the 50 - 70 employees in all of the pool and gym facilities in Crown Melbourne. It was her view that, from her dealings and understanding, the organisational restructure was genuine. This was because there were no other sports and leisure consultants at the Deck. Ms Momesso also indicated that the only hotel that was the subject of the review was the Crown Promenade. 42

There were other changes made at the Deck which were the placement of food and beverage attendants in addition to reception but no bell attendants, except to relieve on breaks, as far as Ms Momesso was aware. 43

The new food and beverage attendant roles were part-time positions due to the need for the roles to cover peak demand time. Ms Momesso also explained that part-time positions provide greater flexibility because of the ability to allocate the employees where necessary. With a full-time employee, Crown is obligated to roster that person for 40 hours a week. Whereas, with a part-time employee, there is flexibility around their part-time band. Ms Momesso can either provide a part-time employee with the minimum hours or flex them up to the maximum hours based on the needs of the business. 44

There is no one at the Deck providing personal instruction or advice or conducting physical evaluation on guests. In relation to the duties that Mr Tsiftelidis previously performed, it was stated that a lot of the receptionists were now doing pool testing. Further, in relation to maintenance, the receptionist would now contact maintenance to have that piece of equipment fixed. As well, the cleaning and checklist would be completed by all staff no matter what their classification was. In addition, all employees within their working environment were responsible to report all maintenance faults as part of maintaining the general area. 45

Mr Tsiftelidis’ non-fitness related duties were now being done by a combination of food and beverage attendants and/or receptionists. 46

Ms Momesso believed that one day’s notice was acceptable in relation to consultation. This was because the consultation process in the Agreement concerned when a group of employees was going to be affected, not an individual. Therefore, a consultation process in relation to an individual has not been done in the past. The matter that she and Mr Tsiftelidis discussed on the day, that his position was no longer required, was sufficient notice. It was her usual practice, when the redundancy only concerned one employee, for the discussions with the employee to be on that day. Further, it was common for the individual, on that day, to be escorted off the premises because they were no longer required in the workplace. 47

She agreed that an individual, to be notified on the day that their position is no longer in existence, then to be escorted off the premises, would maybe go into a state of shock. It was recalled that she and Mr Tsiftelidis had discussed that as they had walked away from the meeting room. Ms Momesso recalled having said that she understood that it could be a very overwhelming process. It was stated that she had actually personally walked with Mr Tsiftelidis because she had wanted to extend her welfare to him as an employee of the Hotel. 48

She did not think that the consultation process should necessarily happen before the effective date of redundancy. This was on the basis that each individual will respond to the news very differently. 49

She had advised Mr Tsiftelidis that his position was made redundant, effective immediately, and that he was not required to go back to the workplace. Ms Momesso said that she was more than happy to escort Mr Tsiftelidis to collect any personal belongings that he had a work. Ms Momesso had also discussed redeployment with Mr Tsiftelidis at that point in time. 50

She had escorted Mr Tsiftelidis off the property for his welfare and as a way of offering him some more support. 51

Applicant

Submissions

[14] Mr Tsiftelidis submitted that the Respondent had changed its reason for the redundancy on two occasions. It was stated that, in the Form F3 Employer Response, it was said that Crown Promenade Hotel did not provide fitness training for a fee. The Respondent had then changed the reason for the redundancy, in its first submissions, to - the declining demand for fitness training. The evidence of Mr Shultz and Ms Stevens was highlighted in relation to confirming that Crown Promenade did provide fitness training for a fee and that fitness training sessions were extremely rare. This was said to eliminate the Respondent’s reason of a decline in the demand for fitness training sessions. It was stated that the company had admitted that there was a need and a service of that nature at Crown Promenade when it initially stated that the service was not provided. 52 Further, it was argued that Crown has not provided any data in support of the reasons for the redundancy.53

[15] In relation to the Respondent’s statement that, when the other two Sports Consultants left in 2012 and 2014, it did not make sense from a commercial perspective to replace work that was not being utilised, Mr Tsiftelidis argued that the personal training aspect of the Sports Consultant position was less than 5% of the role, as confirmed by Mr Shultz and Ms Stevens. It was stated that the tasks of those individuals still continued even after they left the organisation as they were passed onto other staff members. 54

[16] Mr Tsiftelidis disputed the company’s contention that the personal training component was a core function of the Sports Consultant’s role. It was stated that personal training was one part of a Sports Consultant’s job but not solely the core. This was because it was simply one task amongst the other duties set out in the Sports Consultant Position Description. Mr Tsiftelidis argued that the position’s title was Sports Consultant and not Fitness Trainer as there were many other duties to be performed. 55

[17] With respect to the review of the Promenade Leisure Centre undertaken by Crown, Mr Tsiftelidis made the observation that none of the individuals involved in the review gave evidence before the Commission in this matter. It was stated that the company has not provided any data to support their assertion that the requirement for personal training had changed since the Crown Promenade Hotel had opened. This was contrasted with the evidence of Mr Shultz and Ms Stevens that the personal training requirement was already rare in the first place. Mr Tsiftelidis contended that there was no difference, in relation to the personal training requirement, from day one of the Crown Promenade until his position was made redundant. 56

[18] In terms of the Respondent’s statement that it was economics that caused the company to have two food and beverage attendants in place of one Sports Consultant, it was argued Mr Tsiftelidis that Crown did not provide any evidence to suggest that he was the highest paid in the department nor the wages of the other staff members at the Deck. 57 Ms Scarlett’s evidence was referred to in relation to the economic reasons for the redundancy. Mr Tsiftelidis believed that he was not the highest paid employee in the department and he stated that, if the Respondent was going to rely on the economics argument, they needed to provide data in relation to the annual salaries of each individual in the Promenade Leisure department.58

[19] It was submitted by Mr Tsiftelidis that, when he stated his intentions to pursue the matter further in the Fair Work Commission through the Issue Resolution procedure of the Agreement, Crown was quick to act. It was stated that his position was made redundant and that he was escorted off the premises immediately after the meeting on 14 April 2015. 59

[20] Mr Tsiftelidis was strongly of the view that events in the past (the Uniform Allowance back payment and the First-aid Allowance back payment), together with his complaint against his manager in 2014, were a buildup of reasons why the Respondent dismissed him. Mr Tsiftelidis disputed that the Uniform Allowance back payment issue had been resolved. He stated that it was clear that he was exposing a web of corruption within the organisation against certain managers. 60

Evidence

Mr Tsiftelidis

[21] It was Mr Tsiftelidis’ evidence that:

when he worked as a Sports Consultant at Crown Promenade, his role had included the provision of food and beverage services. In terms of food, he stated that there were cookies and that the beverages included alcoholic or non-alcoholic drinks, tea and coffee. With respect to proper meals, he explained that he would call room service and room service would deliver the food. It was stated that he or anyone else on the team would provide food and beverage services to guests. 61

When he commenced working at Crown Promenade, he was one of four Sports Consultants who provided personal training services for a fee. He stated that it was very rare to provide a personal training service to a guest, both when he started and at the time he finished up with Crown. 62 Early on in his employment at Crown, he did work at the other two hotels, Crown Towers and Crown Metropol but it was on very rare occasions. It was generally when someone was sick or was away on annual leave or they were low on staff.63

During his time at Crown, he trained staff members from various departments when they were going to cover the Promenade Leisure Centre. He was required to train them in all of the tasks that he was doing except for the personal training aspect. 64

Mr Tsiftelidis disagreed with Ms Scarlet’s statement that the two Sports Consultants who left were not replaced due to the continued downturn in the demand for the provision of the service. He stated that there was never ever a downturn, even when the two Sports Consultants left. This was because the provision of personal training services was already rare in the first place. 65

[22] During the meeting on 14 April 2015, Mr Tsiftelidis stated that Ms Momesso did not explain why the position was being made redundant. It was recalled that Ms Momesso gave him several options which were to either seek redeployment or take the redundancy package and leave. 66 Mr Tsiftelidis explained that there was no notification of any changes and no consultation prior to the meeting on 14 April 2015.67

[23] It was Mr Tsiftelidis’ belief that his redundancy was not genuine because he was made redundant deliberately to get rid of him. This was due to past events involving him, firstly, pursuing a uniform allowance which was brought into the Fair Work Commission and also to the Federal Magistrates Court (2011/2012). The Fair Work Commission case was subsequently dismissed because he was self-represented and he did not comply with certain orders. 68 His case in the Federal Magistrates Court was dismissed in 2012.69 Secondly, he had successfully pursued a first-aid allowance which he believed Sports Consultants were entitled to (2012/2013). Mr Tsiftelidis disagreed with the company’s contention that the first aid matter that Mr Tsiftelidis was referring to was a matter before Commissioner Roe in 2014.70 It was his view that they were two separate matters.71 It was Mr Tsiftelidis’ view that these matters triggered off certain tensions within Human Resources and management.72

[24] Mr Tsiftelidis explained that the final event was in November 2014 when he raised a complaint against his direct manager. He stated that there was no resolution of his complaint. As a result, Mr Tsiftelidis had advised Ms Scarlett, at the end of February 2015, that he was going to pursue this matter through the issue resolution procedure in the Agreement and into the Fair Work Commission. Mr Tsiftelidis recounted that he was preparing the relevant documents at the time he was made redundant. 73 He recalled that, during the 5-6 weeks between telling Ms Scarlett that he was taking the matter to the Commission, and being made redundant, he was in the process of preparing the documentation which was quite detailed and required accuracy. This was after Mr Moore had given his final response. It was indicated that he still had those documents but that they were not with him in court.74

[25] It was Mr Tsiftelidis’ view that he had escalated his complaint through to Ms Scarlett who had said that she would investigate the matter. It was recalled that Ms Scarlett took the matter to Mr Moore and that Mr Moore had responded. However, Mr Tsiftelidis stated that he was not satisfied with the response from Mr Moore and, through various conversations with Ms Scarlett, he had asked if there were any resolutions or anything else she would want to speak to before he decided to pursue the matter through the issue resolution procedure and the Fair Work Commission. 75 It was Mr Tsiftelidis’ recollection that Ms Scarlett did not advise him to escalate the issue to Ms Gleeson but that she had said that management had nothing else to say.76

[26] Mr Tsiftelidis stated that it was his understanding from the company’s evidence that the restructuring provided for food and beverage assistants to work alongside the receptionist. These positions replaced that of the Sports Consultant who worked with the receptionist together with a bell desk attendant (three - five days a week). Mr Tsiftelidis said that, between the three employees, they ran the whole department. It was stated that he had generally worked on his own each shift and he recalled that the Department, for several years, was predominantly operated by one individual per shift. 77

Mr Schultz

[27] Mr Shultz worked at Crown Towers and Crown Promenade (the Deck) as a Sports Consultant and Leisure Centre Supervisor between 14 March 2000 and November 2012. 78 At the time he resigned, Mr Shultz was employed as a casual employee. However, he commenced as a part-time employee, then went full-time, back to part-time and went casual before he left.79 Mr Shultz was employed prior to Mr Tsiftelidis but they worked in the same department during Mr Shultz’s time at Crown Promenade (when Mr Shultz was working full-time).80

[28] It was Mr Shultz’s evidence that:

He worked at both Crown Towers and Crown Promenade but he had started at Crown Promenade. He then became Leisure Supervisor for Crown Towers and Crown Promenade (from approximately 2009 to 2010/2011). 81

It was rare that patrons staying at the Crown Promenade wanted to utilise his qualifications as a personal fitness trainer. He had probably provided two or three personal training sessions over a period of 2 or 3 years when he was working full-time at Crown Promenade. 82

He was usually rostered on by himself as a full-time Sports Consultant with an hour of cross overtime between Sports Consultants. There were usually 2 people rostered on Fridays, Saturdays or Sundays because these were the busier times. 83

When he commenced at Crown, it only operated one hotel at that time (Crown Towers). Crown Promenade came on board in 2004. 84

His role as a Sports Consultant at Crown Promenade consisted of looking after the pool (lifeguarding, first-aid, cleanliness); manning the cafe/coffee facility (making coffee and serving food and drinks) and supervising guests/clients in the gym (personal training sessions, tips and advice on the use of the equipment and cleanliness). 85

All staff at the Deck had the same responsibilities regardless of their position. This included the Sports Consultants. 86

There was not much time spent on personal training duties by the Sports Consultants. The main duties of the Sports Consultants were running the facility and putting towels out, taking care of the cafe, making coffees, cleaning and pool testing. 87

The Sports Consultants trained the other staff to do nearly 95% of the Sports Consultant’s duties. 88

Leaving aside the fitness element, from his experience and memory, the job that the other employees did was identical to that of the Sports Consultant. 89

As Leisure Centre Supervisor, he managed both Crown Towers and Crown Promenade, under the hotel business unit of Crown Hotel. 90 His main duties were to oversee the Sports Consultants at both hotels’ pool and gym facilities.91

Unless they were trained, the food and beverage attendants would not be able to run the department on their own, as the Sports Consultants did. This was because, beyond food and beverage, there with things to do with the pool and the gym that needed someone who knew what they were doing. 92

Ms Stevens

[29] Ms Stevens worked at Crown Melbourne between November 2003 and November 2014 as a Sports Consultant. During this time, Ms Stevens worked at both Crown Towers and Crown Promenade from July 2007 with the majority of her employment being based at Crown Promenade. 93 Ms Stevens was employed initially on a full-time basis and then went to part-time from around 2006.94

[30] Ms Stevens gave evidence that:

She was first employed at Crown Towers and then she did shifts at both Crown Towers and Crown Promenade (about half and half). After she returned from holidays in July 2007, she was told that she was working at the Deck at Crown Promenade permanently. 95

She was not given an employee change form to sign when she came back from holidays. When she returned, the roster had her at the Deck and she was then told by Mr Geerlings that she was at Crown Promenade. Initially, at the Deck, she reported to Mr Geerlings. At the time she left, she was reporting to Mr Gregory. 96 Between July 2007 and November 2014, she worked some shifts at Crown Towers. These were over and above her part-time role at Crown Promenade - additional shifts. The reason that she worked at Crown Towers was because they were short staffed. She worked about once a week at Crown Towers, depending on Crown Towers’ operational requirements.97

Her day-to-day duties as Sports Consultant included customer service (including food and beverage services); fitness training; reception duties; pool lifesaving and first-aid duties; pool water testing; reporting of maintenance issues and general cleaning duties. 98

Personal training of guests at the Deck was extremely rare. The other staff (non-Sports Consultants) at the Deck could not do the personal training sessions as they did not have the qualifications. 99 The other staff could do pool testing or food and beverage services.100

Between 2007 and November 2014, she conducted one or two personal training sessions for guests (in approximately 2008/2009). 101

She was working at Crown Promenade when Mr Tsiftelidis commenced at the Deck. 102

When she and Mr Tsiftelidis worked together at the Deck, there were other employees with different job titles who also worked in the department. Aside from the fitness training element, the other employees were required to do the same duties as the Sports Consultants. These included the receptionists, massage therapists and bell desk attendants. 103 Ms Stevens had trained some of these employees in pool testing/showing the fitness equipment.104

There was probably a tiny bit more personal training provided at Crown Towers. Ms Stevens conducted 4 or 5 training sessions whilst she was at Crown Towers. 105

When she was working at Crown Towers, the job was the same as at Crown Promenade - it was just a different environment. 106

Up until 2007, the departments were as one. The Sports Consultants worked at both Crown Promenade and Crown Towers and covered breaks etc across both. 107

(b) Section 389(1)(b) - obligation to consult

Submissions and evidence

Crown

Submissions

[31] Crown contended that it had consulted with United Voice (the union) in accordance with its obligations under clause 33.3 of the Agreement. It was stated that consultation with the union took place on 14 April 2015 prior to any meeting with Mr Tsiftelidis. Crown argued that the decision to make the position of Sports Consultant redundant was made in or around or very close to and prior to 14 April 2015. 108

[32] It was stated that Ms Scarlett had telephoned Mr Kemppi at the union on 13 April 2015, left a voice mail message and followed up with an email. Mr Kemppi had replied by email seeking further details. Crown had telephoned Mr Kemppi on 14 April 2015 and advised him that the company was looking at making the position of Sports Consultant at the Promenade Hotel Deck redundant and asked him whether he wanted to attend the meeting with Mr Tsiftelidis. Mr Kemppi was said to have asked whether any other positions were being made redundant and was advised no. Mr Kemppi had then enquired as to what steps the company was taking to redeploy Mr Tsiftelidis. 109

[33] The company had responded that it would be taking all reasonable steps to deploy Mr Tsiftelidis and would be consulting with him about redeployment prior to the termination of his employment. Mr Kemppi was said to have also asked if there were any positions available for Sports Consultants at Crown Metropol or Crown Towers. Crown had advised that there were no vacancies but that, if any became available in the next 4 weeks, Mr Tsiftelidis would be redeployed into that role. It was stated that Mr Kemppi had indicated that he did not need to attend the meeting with Mr Tsiftelidis. 110

[34] Crown submitted that it had therefore satisfied the requirements of clause 33.3 of the Agreement. Further, it was argued that the decision to terminate Mr Tsiftelidis’ employment by reason of genuine redundancy was not made until the redeployment process was exhausted and there were no suitable redeployment positions. It was stated that this was after the expiration of the notice period as extended and in response to Mr Tsiftelidis advising his lawyer that he would take the redundancy. 111

[35] In addition, Crown contended that, as it was a one position redundancy, it was not practical to consider volunteers for the redundancy prior to its implementation. 112

[36] In response to the Applicant’s contention that the company had failed to consult as it did not comply with clause 24 of the Agreement, it was submitted that clause 24 covered major change as defined and Mr Tsiftelidis’ termination was stated to not be a major change within the meaning of the clause. This was within the context of an organisation the size of Crown with in excess of 7000 employees and also within the business unit of the Promenade Hotel (125 employees). 113

Evidence

[37] Ms Scarlett gave evidence that:

Her interpretation of the Agreement was that consultation was required for major change and that the redundancy of one employee would not constitute major change for an organisation the size of Crown. Ms Scarlett stated that the company’s consultation obligations were those contained in clause 33 of the Agreement. However, Ms Scarlett explained that the organisation had been respectful of how the redundancy would impact on Mr Tsiftelidis personally and had tried to mitigate that from a business perspective. 114

It was her view that, until there was a decision made that was going to have an impact on Mr Tsiftelidis, she did not believe that the company was required to advise Mr Tsiftelidis of the organisational restructuring. This was said to be because the business was exploring the options and looking at the structure holistically. Until a decision was made, she did not believe that there was a requirement to inform him prior to that point in time. 115

She had first attempted to consult with the union by telephoning Mr Kemppi on Friday 10 April to 2015 but she did not hear from him. Ms Scarlett confirmed that she had telephoned Mr Kemppi again on 13 April 2015 but had been unable to speak to him and so had left a voicemail message. Ms Scarlett had followed up the voicemail message with an email to Mr Kemppi, also on 13 April 2015. 116

She spoke with Mr Kemppi early in the morning on 14 April 2015 and advised him that Crown was looking at making the position of Sports Consultant at the Deck redundant. Ms Scarlett had asked Mr Kemppi if he wanted to attend the meeting with Mr Tsiftelidis to which Mr Kemppi replied no. Ms Scarlett recalled that Mr Kemppi had asked whether any other positions were being made redundant to which Ms Scarlett had replied no. Mr Kemppi had also asked whether Crown was seeking to redeploy Mr Tsiftelidis and she had replied that Crown would be taking all reasonable steps to redeploy Mr Tsiftelidis and would be consulting with him regarding redeployment, prior to any termination of his employment. Mr Kemppi was also said to have asked if any positions were available for Sports Consultants at Crown Metropol or Crown Towers. Ms Scarlett had replied that there were currently no vacancies, however, if any became available in the next four weeks, Mr Tsiftelidis would be redeployed into that role. 117

She believed that, in contacting United Voice when she did, in relation to Mr Tsiftelidis’ redundancy, Crown had followed all the appropriate steps in relation to consultation with United Voice as per clause 33 of the Agreement. Ms Scarlett was of the view that the correct processes, in relation to the timing of the consultation with United Voice, were followed. 118

After she had spoken with Mr Kemppi, she advised Ms Momesso that she had spoken to United Voice and that she had attempted to invite Mr Kemppi in but he was not going to attend that day. Ms Scarlett thought that she would also have advised Ms Momesso that Mr Kemppi had raised some questions and that she would have explained the answers that she had provided and said that Mr Kemppi was satisfied that he did not need to attend the meeting. Ms Scarlett would also have told Ms Momesso to go ahead and make contact with Mr Tsiftelidis. 119

[38] It was Ms Momesso’s evidence that:

Ms Scarlett advised her that she had spoken with Mr Kemppi from United Voice and that he was fully aware of what was occurring. 120

As Ms Scarlett had made contact with the union, she had had no contact with the union herself. 121

Ms Scarlett had run her through the course of events and based on that, she was comfortable that the company had followed the correct procedure. 122

Mr Tsiftelidis

Submissions

[39] It was submitted by Mr Tsiftelidis that, given that the review commenced around May 2014, Crown had 11 months to have undertaken thorough consultation with himself and the union but did not do so. Instead, it was stated that Crown contacted United Voice about the redundancy a few days before 14 April 2015. 123

[40] Further, it was argued by Mr Tsiftelidis that there were inconsistencies with the company’s obligation to consult in that, if the review was held during May 2014, there were two Sports Consultants still working at the Crown Promenade Hotel at that time. These were himself and Ms Stevens who did not resign until November 2014. This was stated to be five months after the initial first review. It was argued that, if Crown genuinely believed that they had an obligation to consult in relation to changes that affected more than one individual, it did not pursue consultation in relation to the changes at the Deck which would have affected two individuals at that time. 124

[41] Mr Tsiftelidis also contended that, if Crown believed it had an obligation to consult with the union, then it also had the opportunity to consult with himself but did not do so. It was stated that the Respondent has claimed that the redundancy was not a major change and therefore it did not need to consult with himself. It was argued that this view was inconsistent with the Fair Work Act and clause 24.4 – Major Change - of the Agreement. It was argued that there was nothing in the Fair Work Act or the Agreement which stated that single or individual redundancies eliminated the obligation to consult. 125

[42] With respect to consultation with the union, Mr Tsiftelidis stated that the email communication between Ms Scarlett and Mr Kemppi, on 13 and 14 April 2015, was not detailed. It was indicated that Crown did not obtain a statement from Mr Kemppi to verify that the consultation took place. Rather, Crown obtained a letter from United Voice on the last day before the hearing on 9 September 2015. Mr Tsiftelidis argued that this clearly showed the Respondent’s desperation to get help and support from the union in order to portray that they had followed their consultation obligation. Further, it was stated that Crown did not mention, with the help of the union, when Mr Kemppi had finished up with the union. 126

[43] It was alleged by Mr Tsiftelidis that, in relation to Crown obtaining a statement from Mr Kemppi before he left the union, this part of the obligation to consult with the union was bogus. This was on the basis that Mr Tsiftelidis had himself contacted the union on 28 September 2015. Mr Tsiftelidis said that the two individuals he spoke to confirmed that Mr Kemppi had left the union several weeks before the end of September 2015. It was stated that the Respondent had plenty of time to obtain a statement from Mr Kemppi but had failed to do so. Further, Mr Tsiftelidis explained that he had tried to contact Dr Sutton to verify the above but that no response was received from Dr Sutton. This was because Dr Sutton did not detail in his letter of 8 September 2015 as to when Mr Kemppi had left the union. 127

Evidence

[44] In relation to the email exchange between Ms Scarlet and Mr Kemppi, it was Mr Tsiftelidis’ observation was that the emails were very brief. 128 He stated that he had received communication from the union to say that Mr Kemppi was no longer working at the union. Mr Tsiftelidis recounted that he had then contacted the union this week and asked when Mr Kemppi had left. His understanding of the conversations that he had with two individuals was said to be that Mr Kemppi had left a couple of weeks/a few weeks ago.129

[45] In relation to consultation with the union, Mr Tsiftelidis confirmed that, at the time he made his statement, he had received a letter from Dr Paul Sutton, dated 7 July 2015, from United Voice. Since the previous hearing, Dr Sutton had provided an updated piece of correspondence, dated 8 September 2015, which corrected his previous letter where he said that no contact was made with the union by Crown. 130

(c) Section 389(2) - was it reasonable in all of the circumstances for the person to be redeployed?

Submissions and evidence

Crown

Submissions

[46] It was submitted by Crown that, on the balance of probabilities, it was not reasonable in the circumstances, to deploy Mr Tsiftelidis. This was on the basis that Mr Tsiftelidis did not directly participate in, or cooperate with, Crown in any redeployment or outplacement. Further, it was stated that Mr Tsiftelidis did not return Ms Momesso’s calls despite telling her that he would do so after the meeting on 14 April 2015. Rather, it was said that Mr Tsiftelidis had communicated only via his legal representative which created difficulties in canvassing suitable redeployment options. Crown stated that Mr Tsiftelidis’ legal representative did not initiate contact until 28 April 2015 which was 14 days after the meeting with Mr Tsiftelidis on 14 April 2015. 131

[47] Crown argued that it took all reasonable steps in relation to redeployment. It was stated that Crown provided lists of potential positions and identified possible alternative positions at both its premises in Melbourne and its related entity at Crown Perth, based on its knowledge of Mr Tsiftelidis’ skills, qualifications etc. 132

[48] It was the company’s view that it was limited in its efforts due to Mr Tsiftelidis not engaging with it directly as he was legally represented throughout this process. This meant that the company was not aware of other qualifications and experience which Mr Tsiftelidis may have possessed outside of Crown. It was explained that Mr Tsiftelidis did show an interest in one role but that, when he was advised that it was a part-time role, he declined it. It was stated by Crown that, if there were any suitable vacancies, Mr Tsiftelidis would have been deployed to any of those positions. Finally, it was stated that it was Mr Tsiftelidis’ own admission, via his lawyer, that there were not any suitable positions at either Crown Melbourne or Crown Perth. 133

Evidence

[49] Ms Scarlett gave evidence that it would have been reasonable to redeploy Mr Tsiftelidis at the other two hotels if there had been Sports Consultant positions available. For Crown to run an efficient business model, Ms Scarlett stated that there needed to be a vacancy at Crown Towers and Crown Metropol for Mr Tsiftelidis to be redeployed into. Ms Scarlett explained that, at the point at which Mr Tsiftelidis’ position was made redundant, if a Sports Consultant position had become available in the other two hotels, Mr Tsiftelidis would have been transferred into that position. 134

[50] It was stated by Ms Scarlett that she was aware that Ms Momesso had provided Mr Tsiftelidis with a jobs list on 14 April 2015. Ms Scarlett said that she was not involved in the process but that she was aware that Ms Momesso had highlighted certain positions that she thought may be suitable. It was also her understanding that Ms Momesso attempted to make contact with Mr Tsiftelidis to try and understand what his experience prior to Crown was. However, it was Ms Scarlett’s understanding that Mr Tsiftelidis was not willing to engage with Ms Momesso directly. 135

[51] In relation to one of the positions which Ms Momesso identified, namely a table games dealer, it was Ms Scarlett’s view that, as a redeployment option it was something that could be considered. Ms Scarlett understood that there was not an identical role to the one that Mr Tsiftelidis had been performing, available. It was explained that the company’s goal was to try and see whether there was an opportunity for Mr Tsiftelidis to be redeployed into another role. 136

[52] It was Ms Momesso’s evidence that:

It was confirmed that she had a highlighted number of jobs on the job lists she had provided Mr Tsiftelidis. The highlighted jobs were based on Ms Momesso’s limited knowledge of his skills and training. Ms Momesso had attempted to contact Mr Tsiftelidis twice to discuss the direction that he would like to take and to seek clarification about whether he had any other training etc. Ms Momesso’s job was to highlight suitable potential redeployment options to the best of her knowledge. It was up to Mr Tsiftelidis as to whether or not he chose to take up any of those positions. 137

Ms Momesso agreed that if there were vacancies, it would have been appropriate to redeploy Mr Tsiftelidis at the other two pool and gym facilities. However, it was stated that there were no vacancies at that time. 138

She was aware that Mr Tsiftelidis had completed some shifts at Crown Towers. Each of the three hotels were said to operate independently, including with respect to the Sports Consultants. It was stated that the Sports Consultants work for a particular hotel. Ms Momesso agreed that, despite this, Mr Tsiftelidis had managed to do occasional/small amount of shifts at the other hotels. 139

The Position Description for a Sports Consultant was a generic one which stated that the business unit department is Crown Hotels ie. it is a generic Position Description across the three properties. However, it was Ms Momesso’s understanding that Mr Tsiftelidis was specifically placed in Crown Promenade, albeit under the Crown Hotel business unit. It was stated that, if Mr Tsiftelidis had wanted to work at Crown Towers indefinitely, he would have needed to be transferred from Crown Promenade to Crown Towers. 140

It was confirmed that, in the Agreement, the Sports Consultant is under the hotel’s food and beverage umbrella. 141

The new food and beverage attendant positions at the Deck were highlighted as a redeployment option. Ms Momesso stated that, as they were part-time band 2 positions, Mr Tsiftelidis declined those roles. Ms Momesso stated that it was entirely up to Mr Tsiftelidis as to whether or not he would consider the part-time food and beverage attendant position. Ms Momesso could not assume that it was a role that Mr Tsiftelidis would want to take, given that it was a lower classification. 142

Mr Tsiftelidis had been provided with the vacancy list during the meeting on 14 April 2015. Ms Momesso could not put her hand on her heart and say whether the Deck food and beverage attendant position would have been placed on that particular vacancy list. 143

A part-time spa receptionist role at Crown Metropol was highlighted but this was also declined by Mr Tsiftelidis. 144

On the morning of when everything was finalised, Mr Tsiftelidis was made an offer of redeployment back at the Promenade Deck facility. Ms Momesso stated that these were the food and beverage positions which were on the vacancy list. It was recalled by Ms Momesso that she made two attempts to contact Mr Tsiftelidis to discuss those positions in detail and to explain that they were positions at the Deck. Ms Momesso explained that, if she had gone through those positions with him in detail on the day of his redundancy, she was sure that she would have just overwhelmed Mr Tsiftelidis even more. 145

Mr Tsiftelidis

Submissions

[53] In relation to the Respondent’s statement that two part-time food and beverage attendants will fulfil his hours, Mr Tsiftelidis stated that this was deliberately structured so that he could not apply for those positions. It was stated that he had fulfilled those hours on a regular basis for 7+ years. Further, it was argued that Crown did not explain, during the meeting on 14 April 2015, that those positions were going to be implemented at the Deck. Further, it was argued by Mr Tsiftelidis that Crown did not give him a chance to respond to the decision to make the Sports Consultant position redundant. 146

[54] Mr Tsiftelidis contended that the redeployment process was inadequate. It was stated that, on 14 April 2015, Ms Momesso advised him that his options were to seek redeployment or to choose to leave Crown. It was therefore said to be clearly evident that redeployment to an alternative suitable position was Mr Tsiftelidis' responsibility. Mr Tsiftelidis argued that it was not until legal intervention that Ms Momesso attempted to redeploy him and that the attempts had constituted highlighting certain jobs that were not even suitable. It was stated that Mr Tsiftelidis wanted to be reasonable and not restrict Crown in attempting to fulfil its obligation in relation to redeployment. Therefore, Mr Tsiftelidis explained that he had showed an interest in a position and still wanted to be involved in the organisation. However, the job that he showed an interest in was only part-time and was therefore not suitable. 147

[55] Further, it was stated that the job lists provided by Crown included positions at Crown Melbourne and Crown Perth. It was explained by Mr Tsiftelidis that Crown Perth was not suitable as he did not intend to leave Melbourne. Further, through his lawyers, Mr Tsiftelidis confirmed that none of the jobs highlighted were in any way suitable based on skills, experience, qualifications and remuneration. 148

[56] In relation to the Respondent’s claim that he did not engage directly with Ms Momesso which resulted in difficulties in the redeployment process, Mr Tsiftelidis stated that this was consistent with the communication given to him by Ms Momesso, both verbally and in writing. This was to the effect that redeployment was his responsibility. 149

Evidence

[57] Mr Tsiftelidis acknowledged that, on 14 April 2015, Ms Momesso did provide him with a jobs list. However, he said that the new role that was being implemented in the Promenade Leisure Centre was not on that list. 150 It was Mr Tsiftelidis’ view that the reason that that the new job was not on the list was because Crown did not want him back in that area. He said that the new role was deliberately structured as part-time because he was working full-time. He believed that the Respondent knew that he would not apply for a part-time job which was a couple of days a week.151

[58] It was Mr Tsiftelidis’ view that Ms Momesso’s meaningful participation in the redeployment process did not actually occur until he had legal representation. 152

[59] Mr Tsiftelidis explained that he did show interest in a Spa Receptionist role during the redeployment process. It was his view that, of all of the positions that were on the list, it was probably the closest position to that of a Sports Consultant. When it was explained that it was only a part-time role, it was recalled by Mr Tsiftelidis that he withdrew interest in that position. 153

[60] Based on the letter that Ms Momesso provided on 14 April 2015 which stated that his options were to seek redeployment or to leave Crown, he found that the redeployment process was sort of his responsibility. 154

[61] Mr Tsiftelidis confirmed that Ms Momesso had contacted him on 17 April 2015 and spoken with him briefly. He explained that he said that he would call Ms Momesso back because he was on the road driving. Mr Tsiftelidis indicated that he did not call Ms Momesso back. It was agreed that Ms Momesso had called again around 21/22 April 2015 as he received a missed call. 155 Mr Tsiftelidis explained that he did not engage with Ms Momesso because he was pursuing legal representation and then all communication on that issue was between his lawyer and Ms Momesso. He said that he had mentioned that to Ms Momesso on the day that his position was made redundant.156 It was Mr Tsiftelidis’ understanding, as per Ms Momesso’s letter, that it was his decision to seek redeployment and so it was his decision to decide if he wanted anything in that job. It was recalled by Mr Tsiftelidis that Ms Momesso had told him that he had to make that decision within the four week period.157

Considerations and conclusions

[62] As set out in paragraph [6] above, the meaning of genuine redundancy is contained in section 389 of the Act. I will deal with each of these requirements in turn.

Section 389(1)(a) - no longer required the job to be performed

[63] It was submitted by Crown that it no longer required the position of Sports Consultant at Crown Promenade to be performed due to changes in the operational requirements of the business and a change in the business model. Crown argued that, following a review of the operations of the Pool and Leisure Centre at Crown Promenade (the Deck), the decision was made to no longer provide personal training services to guests at the Hotel. This was on the basis that guests were not requesting that service. Rather, the demand from guests was said to be for the provision of food and beverages around the pool.

[64] On the other hand, Mr Tsiftelidis challenged the basis of the review and the resultant restructure. It was argued that there was little difference between the demand for personal training services at the point in time when his position was made redundant compared with when he started at Crown Promenade. Mr Tsiftelidis highlighted the evidence of Mr Shultz and Ms Stevens in support of this contention. Further, Mr Tsiftelidis argued that about 5% of his duties concerned personal training and that there was no difference in the non personal training work performed between himself as a Sports Consultant and the other employees who worked at the Deck.

[65] I have carefully considered all of the material before me and I find that the company’s decision to make Mr Tsiftelidis’ position redundant was due to changes in the operational requirements of the business. The company’s evidence, eventually, was that a review was conducted, between about June 2014 and about April 2015, of the operations of the Deck at the Crown Promenade Hotel. As a result of the review, the company changed its business model and restructured the Deck to reflect the needs of the guests at Crown Promenade. The services that guests wanted did not include personal training but to be served food and beverages around the pool. This resulted in a new business model which provided for an enhanced food and beverage service for customers and the discontinuance of the provision of a personal training service. This in turn led to a restructuring of the staffing profile of the Deck i.e. the number, classification and employment status of the employees with the position of Sports Consultant being made redundant.

[66] In addition to meeting the needs of the guests, one of the other drivers of the changes seems to have been financial considerations and the operational need to increase flexibility in the rostering of staff. It was clear from all of the evidence that there was little demand from guests for personal training sessions. In addition, at the very least, by the time Mr Tsiftelidis was made redundant, there was negligible difference between the work that Mr Tsiftelidis performed and the other employees at the Deck. Mr Tsiftelidis’ position was classified at band 5 under the Agreement whilst the new replacement positions (food and beverage attendants) were classified at band 2 (a lower classification).

[67] Therefore, the evidence is that, from Crown’s perspective, it did not make good business sense to retain the position of Sports Consultant when there was little demand for personal training (which only the Sports Consultant was qualified to provide) and when the same work was being done/ and could continue to be solely done, by other employees who were classified lower than a Sports Consultant. As well, the Sports Consultant’s position in question was a full-time position which, on the basis of the evidence, the company believed offered little flexibility in being able to match the staffing to the peak periods of customer demand.

[68] It is noted that no evidence was provided to the Commission from the operational side of the business or by a member of the team who conducted the review. This resulted in the company’s witnesses, particularly Ms Scarlett, not readily proffering any evidence in relation to the review and the resultant changes. In addition, the quality of the information that was extracted was not high as Ms Scarlett was not involved in the review and was not from the operations side of the business as she worked in Human Resources. In this regard, I am inclined to agree somewhat with Mr Tsiftelidis’ comment that the two Crown witnesses were cannon fodder in relation to the arbitration.

[69] Mr Tsiftelidis submitted that there had not been a change in the amount of personal training that he and Mr Shultz and Ms Stevens had provided since each of them had commenced at Crown Promenade. Mr Tsiftelidis challenged Crown’s contention that there had been a reduction, over time, in the demand for personal training services which was one of the reasons for his redundancy. In relation to this aspect of the matter, I accept the evidence of Mr Tsiftelidis, Mr Schultz and Ms Stevens that there had been little or no change in the number of personal training services that they had provided at Crown Promenade since they started. However, it is apparent from the evidence that, following a review of the needs of the guests, as at June 2014, the need for personal training services was negligible or non-existent. Whether this had always been the case or not is not central to the question of the genuineness of a decision made by an employer to change its business model due to operational changes.

[70] Mr Tsiftelidis also argued strongly that the real reasons that his position was made redundant was because of events that had occurred in the past. These were said to have been his pursuit of backpay of the Uniform Allowance and the First Aid Allowance, together with the complaint he made against his manager in 2014. This contention was rejected by Crown. I have considered Mr Tsiftelidis’ allegation carefully and acknowledge that Mr Tsiftelidis’ belief was genuinely held. However, on the material before me, I have not been persuaded that that was the case. There is no evidence before me on which to base a contrary conclusion. Although it was difficult to extract information about the changes and the resultant restructuring, both of Crown’s witnesses were clear in their evidence that this was not the situation.

Section 389(1)(b) - obligation to consult

[71] It was submitted by Crown that their only obligation to consult in the Agreement was contained in clause 33 – Redundancy. The argument that the employer was also required to have consulted under clause 24 – Change Consultation - was rejected. This was on the basis that Crown did not consider that making one position redundant constituted major change. It was argued by the company that it had consulted with Mr Kemppi of United Voice in relation to Mr Tsiftelidis’ redundancy, in accordance with the requirements of clause 33 of the Agreement.

[72] On the other hand, Mr Tsiftelidis contended that, if Crown could consult with the union, it could have consulted with him. This was said to be particularly so as the review took place over a period of 11 months. Further, Mr Tsiftelidis submitted that there was nothing in either the Fair Work Act or the Major Change clause of the Agreement which stated that single redundancies did not require consultation. In addition, Mr Tsiftelidis questioned whether the proper consultation with United Voice had taken place and queried why Mr Kemppi had not been called to give evidence about this by the company.

[73] The Agreement contains two clauses which deal with consultation in relation to redundancy – clauses 24 and 33. Clause 24 – Change Consultation - requires, amongst other things, that the company is obliged to notify affected employees of major changes, to discuss the changes and to mitigate the adverse effects of the change. The second clause is clause 33 – Redundancy - and it provides that, prior to the redundancy taking effect, the company shall consult with the relevant union.

[74] Section 389(1)(b) of the Act requires that the employer has complied with any obligation in the Agreement (in this case) to consult about the redundancy. Clause 33 of the Agreement is quite specific in that it applies to redundancy and it states, at 33.3, that:

“Prior to redundancies taking effect, the company shall consult with the relevant union as required by the Act in each circumstance to determine alternatives to redundancy. Where practical, the company will consider volunteers for redundancy before implementing forced redundancies.”

[75] On the other hand, clause 24 is a general clause which requires the company to notify, discuss and mitigate major changes in production, programs, organisation etc.

[76] It is an accepted principle of statutory interpretation that, when there is more than one clause which covers the same field, it is the more specific clause, rather than the general clause, which is applicable. Therefore, as clause 33 is specifically concerned about redundancy and contains a requirement to consult, the obligation on the employer was to consult in accordance with clause 33 of the Agreement.

[77] In relation to the consultation which Crown explained that it had undertaken in accordance with clause 33 of the Agreement, it would appear from the email trail and from Ms Scarlett’s evidence, that there was a conversation between herself and Mr Kemppi in relation to the proposed changes at the Crown Promenade and the Sports Consultant position redundancy. There is no evidence before me to suggest that the verbal conversation between Ms Scarlett and Mr Kemppi was not as put by Ms Scarlett. However, it did not assist the Commission that corroborating evidence of Ms Scarlett’s discussions with Mr Kemppi was not led by the company.

[78] Accepting, therefore, that Ms Scarlett’s evidence of the conversation that she had with Mr Kemppi is accurate, it would seem that the company has complied with its obligations under clause 33 of the Agreement to consult with the union about the redundancy. On the basis of the evidence, the discussion between the company and the union was brief. However, it seems to have covered off all of the necessary relevant issues and questions. At the end of the day, it was the union’s decision that there was no need for it to have been in attendance at the meeting on 14 April 2015 when Mr Tsiftelidis was told that his position was made redundant. Whether the union’s decision in this regard was the correct one is not relevant to the Commission’s considerations.

[79] Therefore, on the basis of the evidence before me, I am satisfied that Crown complied with its obligations in the Agreement to consult with the union about the redundancy.

Section 389(2) - was it reasonable in all of the circumstances for the person to be redeployed?

[80] It was argued by Crown that, on the balance of probabilities, it was not reasonable in the circumstances to redeploy Mr Tsiftelidis. This was because Mr Tsiftelidis did not directly participate in, or cooperate with, Crown in relation to any redeployment. The company stated that Mr Tsiftelidis did not return Ms Momesso’s calls and that he communicated only via his legal representative. It was submitted that the company had provided lists of potential positions to Mr Tsiftelidis and had identified possible alternative positions. Crown also explained that Mr Tsiftelidis had shown an interest in one role but that, when he was advised that it was a part-time role, he had declined it.

[81] For Mr Tsiftelidis’ part, it was submitted that the new staffing arrangements at the Deck (two part-time food and beverage attendants) was deliberately structured so that he could not apply for those positions. It was Mr Tsiftelidis’ view that the company had made it clear that it was his responsibility to find a suitable alternative position. He stated that it was not until legal intervention on his behalf that the company attempted to redeploy him. The redeployment attempts by the company were said to have included highlighting jobs that were unsuitable or were located in Perth.

[82] On the basis of the material before me, it would appear that Mr Tsiftelidis was provided with a list of all of the vacant positions at Crown Melbourne and Perth, by Ms Momesso, during the meeting on 14 April 2015. It seems that Ms Momesso contacted Mr Tsiftelidis on Friday, 17 April 2015 to discuss possible redeployment. Mr Tsiftelidis indicated that he would call Ms Momesso back. On 22 April 2015, Ms Momesso contacted Mr Tsiftelidis again but was unsuccessful.

[83] Mr Tsiftelidis’ lawyer wrote to the company on 28 April 2015 seeking clarification regarding a number of matters. On 4 May 2015, Ms Momesso sent a copy of the current vacancies with potential suitable redeployment opportunities highlighted, to Mr Tsiftelidis’ legal representative. On 11 May 2015, Mr Tsiftelidis’ lawyer requested more detail about a potential redeployment position of Spa Receptionist. Ms Momesso advised that it was a part-time position of two shifts per week. Mr Tsiftelidis’ lawyer responded on 12 May 2015 indicating that the Spa Receptionist position was not suitable as it was a part-time role.

[84] The company extended the redeployment period by 10 days (from 12 May 2015 to 22 May 2015) to allow further time for Mr Tsiftelidis to identify a suitable alternative position for redeployment. A further vacancy list was forwarded to Mr Tsiftelidis’ lawyer on 18 May 2015. In response, Mr Tsiftelidis’ legal representative advised that the 18 May 2015 vacancy list did not contain any suitable alternative positions. Mr Tsiftelidis, therefore, did not see any point in holding off the processing of his redundancy payment any further and requested that it be processed on that day.

[85] The vacancy list provided by the company does not appear to specify the particular location of the vacancies except for them being in either Melbourne or Perth. To this end, Mr Tsiftelidis was unable to identify which were the new food and beverage attendant positions that had been created at the Deck. Ms Momesso was unsure as to whether those part-time vacancies were on the list that she gave Mr Tsiftelidis on 14 April 2015.

[86] The relevant authority which provides guidance on the approach to consideration that a redundancy will not constitute a genuine redundancy if it would have been reasonable to redeploy the employee, is contained in the decision of the Full Bench of the Commission in the matter of Technical and Further Education Commission T/A TAFE NSW v Pykett 158 (Pykett) as follows:

“[35] As we have mentioned, the use of the past tense in the expression ‘would have been reasonable in all the circumstances for the person to be redeployed ...’ in section 389 (2)(a) directs attention to the circumstances which pertained when the person was dismissed. As noted in Honeysett, [T]'he exclusion poses a hypothetical question which must be answered by reference to all of the relevant circumstances’. The question is whether redeployment within the employer's enterprise or an associated entity would have been reasonable at the time of dismissal. In answering that question the Full Bench in Honeysett observed that a number of matters are capable of being relevant:

“They include the nature of any available position, the qualifications required to perform the job, 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.”

[36]…For the purposes of s.389(2) the Commission must find, on the balance of probabilities, that there was a job or a position or other work within the employer's enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employee.” 159 (footnotes omitted)

[87] The evidence before me shows that there was no vacant Sports Consultant position at either of the other 2 hotels at the time Mr Tsiftelidis’ position was made redundant. The company’s evidence was clear that, if there had been such a vacancy, subject to Mr Tsiftelidis’ agreement, he would have been redeployed/transferred into it. Unfortunately, such a vacancy did not arise during the notice period.

[88] As there was no Sports Consultant vacancy, the company then provided a list of the job vacancies to Mr Tsiftelidis and his legal representative and Ms Momesso highlighted those positions that she thought might be appropriate for Mr Tsiftelidis to consider. It was Mr Tsiftelidis’ evidence that, apart from a Sports Consultant’s position, the closest similar position was that of Spa Receptionist. It appears that, during the notice period, only one such vacancy arose. This was for a part-time Spa Receptionist (2 shifts a week). As it was a part-time and not a full-time role, it was not accepted by Mr Tsiftelidis.

[89] Around 11 May 2015, the company extended the notice period to allow Mr Tsiftelidis further time to consider redeployment options. Following receipt of a further vacancy list on 18 May 2015, Mr Tsiftelidis’ lawyer advised the company that there were no suitable alternative positions for Mr Tsiftelidis in that list. As Mr Tsiftelidis did not see any point in holding off the processing of the redundancy payment, the company was requested to process the payment.

[90] It was argued by Mr Tsiftelidis that the creation of the two part-time food and beverage attendant positions was deliberately structured as such by the company so that he could not apply for those positions. It is acknowledged that this view was firmly held by Mr Tsiftelidis. The reasons given by the company for creating new part-time positions rather than retaining a full-time position (of whatever job title) related to increasing flexibility in rostering to meet the peak periods of guest demand. There is nothing before me which would suggest that the company’s reasons are other than validly operationally based. I have not been persuaded that the company deliberately created part-time positions in the knowledge that Mr Tsiftelidis would not apply for them, thereby ensuring that Mr Tsiftelidis exited the business.

[91] Therefore, in terms of whether redeployment of Mr Tsiftelidis is considered reasonable, I am not satisfied that it would have been reasonable in all of the circumstances, for Crown to have redeployed Mr Tsiftelidis. This is on the basis that there were no vacant Sports Consultant positions available nor any full-time vacancies of the closest similar position of Spa Receptionist.

Conclusion

[92] Having made the findings set out in paragraphs [65], [79] and [91] above, I find that the termination of Mr Tsiftelidis’ employment was a case of genuine redundancy within the meaning of section 389 of the Act. As a consequence, Mr Tsiftelidis’ application is not within the Commission’s jurisdiction as Mr Tsiftelidis is not a person who is protected from unfair dismissal in accordance with section 385 of the Act.

[93] An order 160 dismissing the application will be issued separately.

Appearances:

N Tsiftelidis appeared on his own behalf

J Williamson in-house Counselfor the Respondent

Hearing details:

2015.

Melbourne:

September 9;

October 1

Final written submissions:

Respondent, 2 November 2015

Applicant, 23 November 2015

Respondent, 7 December 2015

1 Respondent’s Closing Submissions, dated 2 November 2015, at paragraph 10

2 Ibid at paragraphs 11 - 12 and Exhibit R1 at paragraph 8

3 Ibid at paragraphs 13 – 15, ibid at paragraph 9 and Exhibit R3 at paragraphs 4 and 6

4 AE405698

5 Respondent’s Closing Submissions, dated 2 November 2015, at paragraphs 18 - 19

6 Transcript PN 99 - 100

7 Ibid PN 124 - 126, 136, 139 - 140 and 142 and Exhibit R6 at paragraphs 14 - 16

8 Ibid PN 274 - 288

9 Ibid PN 475 - 481

10 Ibid PN 482 - 484

11 Ibid PN 670 - 692

12 Ibid PN 126 - 127 and 137

13 Ibid PN 124

14 Ibid PN 141

15 Ibid PN 143 - 146

16 Ibid PN 147

17 Ibid PN 148 - 149

18 Ibid PN 150, 254 and 262

19 Ibid PN 262 - 273

20 Ibid PN 151 - 152

21 Ibid PN 485 - 486, 525 - 527 and 541 - 547

22 Ibid PN 528 - 530

23 Ibid PN 578

24 Ibid PN 585 - 586

25 Ibid PN 467 - 463

26 Ibid PN 153

27 Ibid PN 156 - 157

28 Ibid PN 302 - 306

29 Ibid PN 307 - 308 and Exhibit R6 at paragraph 25

30 Ibid PN 434 - 435

31 Ibid PN 811 - 815 and 834

32 Ibid PN 815

33 Ibid PN 806 - 808 and 838 and Exhibit R6 at paragraphs 7 - 8

34 Ibid PN 816, 832, 838 and 1177 and ibid at paragraphs 8 - 9

35 Ibid PN 838 and 1182

36 Ibid PN 839 - 840 and Exhibit R6 at paragraph 10

37 Ibid PN 842 - 844

38 Ibid PN 845

39 Ibid PN 849 - 850

40 Ibid PN 846 - 848 and 991

41 Ibid PN 873 - 881

42 Ibid PN 985 - 999 and Exhibit R6 at paragraph 27

43 Ibid PN 991, 1093 - 1094 and 1104

44 Ibid PN 1144 - 1160

45 Ibid PN 1096 - 1101

46 Ibid PN 1103

47 Ibid PN 816 - 821

48 Ibid PN 822

49 Ibid PN 823 - 824

50 Ibid PN 825

51 Ibid PN 826 - 828

52 Applicant’s Closing Submissions, dated 21 November 2015, at paragraphs 5 - 7

53 Ibid at paragraph 20

54 Ibid at paragraph 8

55 Ibid at paragraph 9

56 Ibid at paragraphs 13 - 16 and 20

57 Ibid at paragraph 20

58 Ibid at paragraph 23

59 Ibid at paragraphs 17 - 18

60 Ibid at paragraphs 30 - 31

61 Transcript PN 1595 - 1596

62 Ibid PN 1594

63 Ibid PN 1595

64 Ibid PN 1595

65 Ibid PN 1688 - 1693 and 1699 - 1701

66 Ibid PN 1599

67 Ibid

68 Ibid PN 1608, 1788 and 1822 - 1823

69 Ibid PN 1608, 1788 - 1790 and 1792 - 1795

70 Exhibit R9

71 Transcript PN 1608 and 1797 - 1825

72 Ibid PN 1608

73 Ibid PN 1608 - 1609, 1854, 1868, 1926 - 1928

74 Ibid PN 1855 - 1858, 1859 - 1862 and 1929

75 Ibid PN 1869 - 1925

76 Ibid PN 1922 - 1925 and 1930 - 1932

77 Ibid PN 1595 - 1598

78 Ibid PN 1256 and Exhibit A1 at paragraphs 1 and 4

79 Ibid PN 1285 - 1286

80 Ibid PN 1253 - 1254 and 1309 and Exhibit A1 at paragraph 4

81 Ibid PN 1288 - 1295

82 Ibid PN 1297 - 1305 and 1313 and Exhibit A1 at paragraph 2

83 Ibid PN 1310 - 1312 and 1333 - 1335

84 Ibid PN 1319 - 1325

85 Exhibit A1 at paragraph 1

86 Ibid at paragraph 2 and Transcript PN 1330

87 Transcript PN 1331 - 1332

88 Ibid PN 1339

89 Ibid PN 1355

90 Ibid PN 1340 - 1342

91 Exhibit A1 at paragraph 2

92 Transcript PN 1354

93 Ibid PN 1403 - 1404 and Exhibit A2 at paragraphs 1 - 2

94 Ibid PN 1381 - 1383 and 1386

95 Ibid PN 1395 - 1396

96 Ibid PN 1397 - 1407

97 Ibid PN 1409 - 1417

98 Ibid PN 1420 and Exhibit A2 at paragraph 4

99 Ibid PN 1426 - 1429 and ibid at paragraph 6

100 Ibid PN 1430

101 Ibid PN 1431 - 1434

102 Ibid PN 1440 and Exhibit A2 at paragraph 3

103 Ibid PN 1441 - 1443 and ibid at paragraphs 3 and 5

104 Ibid PN 1444 - 1445

105 Ibid PN 1446 - 1449

106 Ibid PN 1453

107 Ibid PN 1454 - 1455

108 Respondent’s Closing Submissions, dated 2 November 2015, at paragraphs 20 - 23 and Exhibit R1 at paragraph 12

109 Respondent’s Closing Submissions, dated 2 November 2015, at paragraphs 23 - 25

110 Ibid at paragraphs 25 - 26

111 Ibid at paragraphs 27 - 28 and Exhibit R1 at paragraph 12

112 Ibid at paragraph 29 and ibid at paragraph 13

113 Ibid at paragraphs 30 - 31 and ibid at paragraphs 14 - 15

114 Transcript PN 310 - 315 and 327 and Exhibit R6 at paragraphs 17 and 24

115 Ibid PN 326

116 Ibid PN 347 - 349, 401 and 447 - 457, Exhibit R3 at paragraphs 18 and 20 and Attachment DS 5 and Exhibit R6 at paragraphs 18 and 20

117 Exhibit R3 at at paragraphs 21 - 23 and Exhibit R6 at paragraphs 21 - 23

118 Transcript PN 462 - 466

119 Ibid PN 407 - 420

120 Ibid PN 829

121 Ibid PN 882 and 886

122 Ibid PN 888

123 Applicant’s Closing Submissions, dated 21 November 2015, at paragraphs 10 and 21

124 Ibid at paragraph 11

125 Ibid at paragraphs 22 and 34

126 Ibid at paragraph 24

127 Ibid at paragraph 25

128 Transcript PN 1609 and 1619 - 1621

129 Ibid PN 1622 - 1623 and 1627

130 Exhibit R8

131 Respondent’s Closing Submissions, dated 2 November 2015, at paragraph 35 and Exhibit R1 at paragraph 19

132 Ibid at paragraph 36 and ibid at paragraph 20

133 Ibid at paragraphs 36 - 38 and ibid at paragraph 22

134 Transcript PN 607 - 612

135 Ibid PN 657 - 659

136 Ibid PN 660 - 663

137 Ibid PN 900 - 905 and Exhibit R6 at paragraphs 13 and 23

138 Ibid PN 906 - 907

139 Ibid PN 911 - 918 and Exhibit R6 at paragraph 6

140 Ibid PN 950 - 955

141 Ibid PN 977 - 979

142 Ibid PN 1133 - 1137 and 1144

143 Ibid PN 1138 - 1143 and Exhibit R6 at paragraph 13

144 Ibid PN 1133

145 Ibid PN 1167 - 1171 and Exhibit R6 at paragraph 15

146 Applicant’s Closing Submissions, dated 21 November 2015, at paragraph 19

147 Ibid at paragraph 26

148 Ibid at paragraph 28

149 Ibid at paragraph 27

150 Transcript PN 1599 - 1600 and 1939

151 Ibid PN 1607

152 Ibid PN 1600 and 1941

153 Ibid PN 1607

154 Ibid PN 1607

155 Ibid PN 1945 - 1964

156 Ibid PN 1967 - 1968 and 1972 - 1973

157 Ibid PN 1971

158 [2014] FWCFB 714

159 Ibid at [35] - [36]

160 PR578345

Printed by authority of the Commonwealth Government Printer

Nick Tsiftelidis v Crown Melbourne Limited

[2016] FWCFB 3345

2 June 2016

DECISION