Phillip Harding v Linbo Pty Ltd (Receivers and Managers Appointed) T/A Noosa Blue Resort
[2010] FWA 6125
•26 AUGUST 2010
[2010] FWA 6125 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Phillip Harding
v
Linbo Pty Ltd (Receivers and Managers Appointed) T/A Noosa Blue Resort
(U2010/8110)
COMMISSIONER MCKENNA | SYDNEY, 26 AUGUST 2010 |
Application for an unfair dismissal remedy - genuine redundancy.
[1] Phillip Harding (“the applicant”) has made an application, pursuant to s.394 of the Fair Work Act 2009 (“the Act”), seeking an unfair dismissal remedy with respect to the termination of his employment by Linbo Pty Ltd (Receivers and Managers Appointed) T/A Noosa Blue Resort (“the respondent”).
[2] Freehills, the solicitors acting for the receivers and managers, initially raised two objections concerning the application. As the first objection was subsequently withdrawn, the remaining matter was the question of whether the termination of employment was a genuine redundancy. Freehills has also advised that given the receivers’ obligations to the appointing mortgagee, the receivers would not participate in any conciliation conferences or hearings, nor provide any further submissions (but did wish to be heard in any proceedings concerning a late joinder application made by the applicant).
[3] The matter had been listed for hearing in Brisbane on 30 July 2010, but that listing was vacated on the application of the applicant and adjourned to 10 August 2010. In the hearing, the applicant appeared on his own behalf, by telephone. In accordance with the advice thereto from Freehills, there was no appearance by or on behalf of the respondent at the hearing.
CONSIDERATION
[4] Section 396 of the Act provides that Fair Work Australia must decide certain matters relating to an application before considering the merits of the application, including whether the dismissal was a case of genuine redundancy. As to the meaning of genuine redundancy, s.389 of the Act provides:
“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.”
[5] The applicant considered that his termination of employment was not a genuine redundancy because: (1) the applicant was aware that, following his termination of employment, endeavours had been made to employ the services of another person to carry out sales and marketing activities, but that person had declined; (2) at the time of the termination of employment, no employee other than the applicant was dismissed or made redundant by the receivers and managers; (3) the deterioration in occupancy rates at the resort is, in part, a direct result of the lack of sales and marketing activities the applicant had formerly performed; (4) the applicable award had not been observed, as there had been no consultation about the applicant’s employment or redundancy; and (5) there was no consultation about redeployment to any other role within the resort.
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
[6] The applicant received advice of termination of employment in a letter dated 7 April 2010. The letter relevantly read as follows:
“Dear Phillip
Linbo Pty Ltd
(receivers and managers appointed)
ACN [number]
(“the Company”)
Trading as Noosa Blue Resort, Noosa Heads (“the Resort”)
I refer to the appointment of Richard Dennis and I as joint and several Receivers and Managers of the above company on 24 March 2010.
In light of the Company’s financial and operational position, I regret to advise that your employment is hereby terminated, effective immediately.
All assets of the company in your possession should be returned to the Company by prior arrangement with on site management at the Resort. This includes motor vehicles, equipment, mobile phones, laptop computers and the like.
Should you wish to access the Resort in future, you should do so only after receiving written authority from me.
Your salary/wages accrued from the date of my appointment until today will be paid in the normal course.
If you have any questions, please contact [named individual] of my office on [telephone number].
Yours sincerely
Justin Walsh
Receiver and manager”
[7] As to the comments that in “light of the Company’s financial and operational position, the Company is no longer in a position to continue your employment”, the applicant submitted there was nothing to support the view that the respondent no longer required sales and marketing to be performed by anyone because of changes in the resort’s operational requirements. The applicant’s evidence noted that the resort is still trading. The applicant contended that the sales and marketing work he had formerly undertaken was essential and would have to be performed by someone, in one form or another, if the resort were to operate effectively. He also understood that approaches had been made to “employ the services” of another person to carry out sales and marketing activities following his termination of employment.
[8] I consider that the appointment of receivers and managers, of itself, speaks to the fact of financial and/or operational exigencies that may have been involved in the decision to terminate the applicant’s employment. The applicant was of the view that a sales and marketing role was essential to the effective operation of the resort. However, the applicant’s own evidence and submissions indicated that no one has performed sales and marketing work since his termination of employment to the time the hearing proceeded on 10 August 2010. Although the applicant understood that, following his termination of employment, approaches had been made to a person to employ her services to carry out sales and marketing activities, that person declined. There was also evidence by way of a statutory declaration from a current employee of the resort which indicated that, “Since [the applicant] was dismissed in early April, there has been a marked downturn in business. Occupancy has dropped well below what it had been for the same period in years before, and housekeeping staff hours have been reduced dramatically with the decline in bookings, under the new management.”
[9] Although the applicant may be correct in his assessment that a sales and marketing role of the type he formerly undertook was necessary for the resort’s operations, and there was evidence of a decline in booking since his termination of employment that may be attributable to a lack of sales and marketing being undertaken, there was no evidence to support a conclusion that anyone is now undertaking the sales and marketing role he formerly undertook.
The employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy
[10] There was nothing to suggest an enterprise agreement applied to the applicant’s employment. In the hearing, the applicant could not name the modern award that relevantly applied but, pursuant to leave earlier given, I received a later submission on the applicant’s behalf nominating the Hospitality Industry (General) Award 2010 (“the award”). The award contains standard consultation provisions. The applicant’s evidence indicated there was no consultation with him. That is, the applicant had, while absent from work under cover of a medical certificate applicable from the date of the appointment of the receivers and managers, received written advice that his “employment is hereby terminated, effective immediately”.
[11] Although I asked the applicant in the proceedings about the title of his position, he provided none - alluding instead in a general way to sales and marketing-related work he had undertaken for the resort. However, the pay slips the applicant adduced in evidence record his classification as that of “Director”. In this regard, it may be noted that the applicant had been both an employee and a director of the respondent.
[12] Sections 47 and 48 of the Act specify when an award applies to/covers an employee. As to its coverage, the award reads as follows:
“4. Coverage
This industry award covers employers throughout Australia in the hospitality industry and their employees in the classifications within Schedule D - Classification Definitions to the exclusion of any other modern award. The award does not cover employers in the following industries: ...”
[13] None of the eight classifications at D.2.1 to D.2.8 in Schedule D of the award appear to have any relevance to the work undertaken by the applicant, i.e., D.2.1 (Food and beverage stream), D.2.2 (Kitchen stream), D.2.3 (Guest services stream), D.2.4 (Administration stream), D.2.5 (Security stream), D.2.6 (Leisure activities stream), D.2.7 (Stores stream) and D.2.8 (Maintenance and trades - other than the cooking trades). Clause D.2.9 deals with managerial employees in the following way:
“D.2.9 Managerial staff—hotels
For the purpose of this additional classification, hotels means hotels, resorts, casinos, taverns, wine saloons, wine and spirit merchants retailing to the general public and other retail licensed establishments in or in connection with accommodation, with the selling of drinks, preparing and serving food and drinks, cleaning and attending to the premises and all other services associated therewith.
In this additional classification, hotel manager means an employee (however designated) who:
• under the direction of senior management is required to manage and co-ordinate the activities of a relevant area or areas of the hotel; and
• directs staff to ensure they carry out their duties in the relevant area or areas of the hotel; and
• implements policies, procedures and operating systems for the hotel;
but excludes an employee who is employed to undertake the duties of senior management, responsible for a significant area of the operations of one or more hotels. Indicative position titles for such an employee include:
• Company secretary;
• Chief accountant;
• Personnel or human resources manager;
• Financial controller;
• Industrial relations manager;
• Venue manager;
• General/hotel manager;
• Executive assistant manager;
• Regional manager; or
• a Manager to whom any of those positions report or are responsible.
An employee appointed as a Manager will have completed an appropriate level of training in business management or have relevant industry experience including the supervision of staff in one or more areas of an hotel. In a General Hotel, this classification is commonly known as an Assistant manager. In an Accommodation Hotel, this classification may include any of the following positions: Duty manager; Assistant food and beverage manager; Assistant rooms division manager; Assistant front office manager or equivalent position.
This additional classification does not apply to:
• Any hotel manager who is an employee of a proprietary or private company (within the meaning of the Corporations Law) where the Hotel Manager holds sufficient number of shares to entitle the Hotel Manager to voting control at general meetings of the company; or
• Any hotel manager who is the senior partner of a partnership or has at least 49% of that partnership; or
• A parent, spouse or de facto partner, son or daughter of a hotel manager excluded from the additional classification by this paragraph.”
[14] The classifications in Schedule D of the award do not seem comfortably, if at all, to cover the role described in the applicant’s own evidence and in a statutory declaration which I have reviewed of a former general manager of the resort concerning the applicant. In any event, given the description of the applicant’s role, the applicant may well have been within the ranks of senior management that are excluded in the award. I would not conclude the consultation provisions of the award relevantly arose in relation to the applicant, as I do not consider the award applied to the employment in this case.
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 the employer’s enterprise or the enterprise of an associated entity of the employer
[15] The applicant said he had a broad range of skills and experience that would be relevant the resort’s operations in its continued trading. He contended it would have been reasonable for him to be redeployed in circumstances where new employees had commenced working at the resort since his termination of employment.
[16] The applicant’s evidence and submissions as to whether it would have been reasonable in all the circumstances for him to be redeployed within the resort were not well-developed. The applicant said new employees having been employed since his termination of employment, but there was insufficient identification of the job or jobs to which the applicant considers he could have been redeployed to allow a conclusion as to whether it would have been reasonable in all the circumstances for him to be so redeployed. Moreover, there was evidence of a decline in bookings at the resort since the termination of the applicant’s employment, leading to a dramatic reduction in the hours of work for at least some employees thereby indicating there was less work available at the resort than previously had been the case.
[17] The applicant did not contend it would have been reasonable in all the circumstances for him to be redeployed within the enterprise of an associated entity of the employer.
CONCLUSION
[18] As to s.389(1)(a) of the Act, the applicant’s evidence indicated that the sales and marketing role he undertook is no longer being undertaken by anyone - albeit, the evidence suggested, to the detriment of resort when considered in terms of the decline in bookings since the applicant’s termination of employment. It is, however, a matter for an employer to determine whether it wishes to continue having a role performed within its operations, even if the decision thereto may have deleterious business effects. That the respondent no longer required the applicant’s job to be performed by anyone because of changes in operational requirements is evidenced by the fact that no one now performs sales and marketing. While it may be accepted the applicant was not consulted about the termination of employment, I do not consider the nominated award applied to his employment such as to invoke any consultation requirements within the meaning of s.389(1)(b) of the Act. Further, as to s.389(2)(a) of the Act, there was insufficient evidence to allow a conclusion it would have been reasonable in all the circumstances for the applicant to be redeployed within the resort, even though the applicant understood that at least some new employees had been engaged since his termination of employment. Other evidence that is available, such as that indicating a decline in bookings leading to dramatically reduced hours of work at the resort since April 2010, tends to militate against reaching such a conclusion concerning redeployment within the resort. Last, there was no evidence as to matters relevant to s.389(2)(b) of the Act concerning associated entities.
[19] The termination of employment was, the evidence indicated, a redundancy given that the sales and marketing role the applicant formerly undertook until 7 April 2010 is no longer being performed by anyone.
[20] In the circumstances, the application is dismissed and the proceedings are concluded.
COMMISSIONER
Appearances:
P Harding, on his own behalf
Hearing details:
Sydney
August 10 2010.
Final written submissions:
12 August 2010
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