Shachar v Electrical Home Aids Pty Ltd t/a Godfreys

[2018] FWC 4892

[2018] FWC 4892

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Yitzhak Shachar
v
Electrical Home Aids Pty Ltd t/a Godfreys
(U2018/3657)

DEPUTY PRESIDENT COLMAN MELBOURNE, 12 OCTOBER 2018

Application for an unfair dismissal remedy – genuine redundancy – application dismissed

[1] This decision concerns an application made by Mr Yitzhak Shachar for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Act). Mr Shachar worked for Electrical Home Aids Pty Ltd (Godfreys) in a managerial role at the company’s Clayton store in Victoria. His position was made redundant and his employment was terminated. Mr Shachar contends that his dismissal was harsh, unjust or unreasonable. He seeks reinstatement and compensation.

[2] Godfreys objects to the application on a jurisdictional ground. It contends that the dismissal was a case of genuine redundancy and that therefore Mr Shachar was not unfairly dismissed within the meaning of s 385 of the Act.

[3] Section 396 requires that the Commission decide four matters before considering the merits of an unfair dismissal application. One of these is the question of whether the dismissal was a case of genuine redundancy. For the reasons that follow, I have concluded that Mr Shachar’s dismissal was a case of genuine redundancy.

Factual background

[4] Mr Shachar was employed by Godfreys from July 2000 until his dismissal on 23 March 2018. He occupied various sales and other positions. From 1 February 2015 he was employed in the role of state training manager. In May 2017, Mr Robert Roy, Godfreys’ Victorian state manager, told Mr Shachar that his role of state training manager was no longer required, as the duties attached to that role were being subsumed by other employees. Mr Roy asked Mr Shachar to perform another role. According to Mr Shachar, Mr Roy asked him to be the ‘area manager’ for the Clayton store. 1 Mr Roy says that he asked Mr Shachar to perform a role similar to that of an area manager, but with responsibilities only for the Clayton store.2 Ordinarily an area manager, as the name suggests, is responsible for several stores in a particular area, whereas a store manager is responsible for a single store. During the proceedings, Mr Shachar referred to the role he was given in May 2017 as ‘area manager’. Mr Roy referred to it as the ‘ad hoc’ role.3 I will refer to it as the ‘2017 role’.

[5] There was no written contract for the 2017 role, nor was it assigned a position title. Mr Shachar continued to receive the salary and entitlements that applied to his former training manager role. On 6 May 2017, Mr Roy sent Mr Shachar an email setting out the duties for the 2017 role. 4 During the proceedings, Mr Roy acknowledged that most of these duties would be performed by an area manager.5 Mr Shachar contended, and I accept, that the 2017 role was a position higher than that of store manager. His remuneration substantially exceeded that of a store manager.

[6] The company’s management structure has at all relevant times comprised a state manager, area managers who report to the state manager and who supervise multiple stores, and store managers, who are also called team leaders. Below the store manager are commercial managers and then sales staff. 6 In May 2017, Mr Roy was the state manager. There were two area managers covering stores in Victoria. Each store had its own store manager. The Clayton store has had the same store manager for some years, and Mr Shachar never performed that role. As at the time of hearing, Mr Roy remained the state manager for Victoria. There was only one area manager in the state, Mr Daniel Dougal, who was responsible for covering eleven stores in Victoria. Mr Roy ‘area managed’ the other two Victorian stores directly. Each store, including Clayton, continued to have its own store manager.

[7] On 21 February 2018, Mr Shachar sustained an injury while handling a pallet delivery. 7 It appears that the injury did not manifest itself immediately. Mr Shachar said that it was not until 23 February 2018 that he told Mr Roy that he thought there was something wrong with him. Mr Roy’s evidence was that Mr Shachar told him that he was exhausted from a tough week, and did not mention any injury at that time. In any event, Mr Shachar subsequently took paid sick leave and returned to work on 12 March 2018.8

[8] On 22 February 2018, the day after the injury occurred, Mr Shachar went to Godfreys corporate headquarters in Glen Waverly to collect some offers of employment for new staff at the Clayton Store. While he was there, he told Ms Neha Verma that his contract still referred to his old position of state training manager, but that he was in fact an area manager. 9 Ms Verma said that he should be issued with a new contract reflecting his current role.10

[9] Ms Verma contacted Ms Catherine Frecker in the people and culture department and told her that Mr Shachar did not have a current contract of employment. Ms Frecker then located Mr Shachar’s contract. She established that the state training role to which the contract related had been redundant for some time and that Mr Shachar was now performing different managerial tasks at the Clayton store. Ms Frecker considered that Mr Shachar’s remuneration was well in excess of a management role for a single store. Later that day she spoke with Mr Roy about Mr Shachar’s role.

[10] On 23 February 2018, Mr Roy discussed Mr Shachar’s role with Mr Michael Owen, Godfreys’ general manager retail. They determined that the 2017 role was not required, because the area manager for Victoria and the store manager for Clayton were sufficient resources to perform the tasks that Mr Shachar was undertaking. 11 They also decided that, as there were no available management roles, they would offer Mr Shachar a position in sales, but that if he did not want such a position, his employment would be terminated and he would receive his severance and other entitlements.12

[11] While Mr Shachar was still on sick leave, he called Mr Roy and suggested an arrangement whereby the company would cover his medical expenses, and he would not then need to make a WorkCover claim. 13 Mr Roy said he could not authorise that and a meeting with human resources would be required. There was no discussion about Mr Shachar’s role. When Mr Shachar returned to work, Mr Roy told him that he had organised a meeting with human resources on 15 March 2018. This was rescheduled for 19 March 2018.

[12] The meeting on 19 March 2018 was attended by Mr Shachar, Mr Roy, Ms Ebony Smith, head of people and culture business department, and Ms Mari Ruiz, chief people and culture officer. Ms Ruiz told Mr Shachar that his role was redundant. She said that his previous role of state training manager was made redundant in May 2017. She asked if he was interested in a sales role with commensurate salary. Mr Shachar replied that he could not take up a sales position with his injury restrictions. I note that a sales role paid only around half of Mr Shachar’s current salary. Mr Shachar also said that he intended to file a WorkCover claim in respect of his injury. Ms Ruiz said that Mr Shachar’s employment would end on 23 March 2018.

[13] Following the meeting, Mr Shachar went to see a doctor. He sent a WorkCover claim to the company on the evening of 19 March 2018. Mr Shachar was paid his statutory entitlements, including payment in lieu of notice, accrued leave and severance payments totalling some $65,000.

Genuine redundancy

[14] Godfreys contends that Mr Shachar’s dismissal was a case of genuine redundancy, and that the Commission has no jurisdiction to hear the merits of the application. Section 385 of the Act provides that a dismissal cannot be unfair if it was a case of genuine redundancy. Genuine redundancy is defined as follows by the Act at s 389:

“(1) A persons 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.”

Was the job no longer required because of changes in operational requirements?

[15] I will deal first with the question of whether Godfreys no longer required Mr Shachar’s job to be performed by anyone because of changes in the operational requirements of its enterprise.

[16] At the time of his dismissal, Mr Shachar was performing the 2017 role. Although there was some debate between the parties about the nature of the 2017 role, the duties of the role are clearly set out in the email message of 6 May 2017.

[17] Mr Roy’s evidence was that the 2017 role was not required. He said that the area manager for Victoria and the store manager for Clayton were adequate resources to perform the tasks that Mr Shachar had been performing in his role. 14 I accept this evidence. I consider Mr Roy to have been an honest and candid witness. Furthermore, his testimony on this point is consistent with his other evidence. He said that he himself spent a lot of time at the Clayton store15 and always considered himself effectively to be the area manager covering the Clayton store.16 He said there was no precedent within the company for a one-store area manager.17 He also said that the 2017 role could be absorbed by other employees.18 A further reason why Mr Roy’s evidence that the role was not required should be accepted is that it is inherently plausible. Mr Shachar was performing a role similar to that of an area manager, yet he had no area to manage, only a single store, a store which had its own dedicated store manager, and was overseen by a state manager. These circumstances tell against the utility of a one-store area manager.

[18] Given the above, the question arises as to why Mr Roy assigned Mr Shachar to the 2017 role in the first place. Mr Shachar stated that the Clayton store, which he called the flagship store, was in trouble and that he was told that he was needed to assist that single, but important, store. 19 This evidence was not contradicted and I accept it. Mr Roy explained in his evidence that he created the 2017 role to keep Mr Shachar in the business after his previous role of state training manager became redundant in May 2017.20 I also accept this evidence. But regardless of the reasons for creating the 2017 role, the company’s position some ten months later was that the role was not required to be performed by anyone.

[19] I note that Mr Roy did not instigate the review of Mr Shachar’s role. In my view, Mr Shachar was surprised and disappointed that Mr Roy did not seek to convince Mr Owen that the 2017 role was still required. However, it is clear that when the people and culture department noticed that Mr Shachar did not have a current contract and looked into whether Mr Shachar’s role was needed, this prompted an examination and process of deliberation that led the company to conclude that the role was redundant.

[20] It is relevant to take note of what has occurred since Mr Shachar was dismissed. Godfreys has not replaced Mr Shachar. No one is performing the 2017 role. The store manager at Clayton reports to Mr Roy, the state manager, who acts as an area manager covering that store as well as another of the company’s 13 stores in Victoria. Godfreys Victorian company-owned stores operate with only one ‘area manager’, being Mr Dougal, who is responsible for the other eleven company-owned stores in the state. 21

Which role was made redundant?

[21] Mr Shachar contended that there was some confusion as to which position the company claimed to have made redundant, the training role or the 2017 role. 22 The case put before the Commission by the company was clear in this regard. The jurisdictional objection concerned Mr Shachar’s dismissal for reason of redundancy arising from the company’s decision that it did not want the 2017 job done by anyone. The role of state training manager had long since disappeared.

[22] As to whether at the time of the dismissal there was any confusion about which role was being made redundant, Ms Smith said in her statement that Ms Ruiz told Mr Shachar that his role was being made redundant. 23 This can only mean the 2017 role. There is a reference in Ms Smith’s notes of the meeting of 19 March 2018 that indicates Ms Ruiz told Mr Shachar that his training role was redundant. However, there is no contradiction here. As a matter of fact, both roles were redundant. The training role had ceased to exist in May 2017, and the 2017 role ceased to exist in March 2018. Furthermore, Ms Smith’s note is very brief. It is plainly not a complete record of what was said. I also note that the letter of redundancy from Mr Owen to Mr Shachar (which Mr Shachar claims never to have received) states that his role of training manager is no longer required.24 No reference is made in the letter to the 2017 role. Nevertheless, I consider that Mr Shachar clearly understood that the company had decided his current role was no longer required and that his employment was to be terminated for this reason.

[23] In any event, s 389 requires me to determine whether the company no longer required Mr Shachar’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; notification of the reason is not an element of the jurisdictional objection, although clearly this would be relevant in the context of the consultation obligations that might arise under an award or an enterprise agreement.

The workplace injury and the WorkCover claim

[24] Mr Shachar contended that the company had an ulterior motive for terminating his employment. He said that the redundancy was contrived after he notified the state manager that he had sustained a work-related injury on 21 February 2018. 25 He said that he notified Mr Roy of this injury on 23 February 2018, and that his position was declared redundant afterwards. The company denied that Mr Shachar’s workplace injury had anything to do with the decision to dismiss him. It contended that it was already in the process of considering making Mr Shachar’s role redundant, and that Ms Frecker had requested a termination payment calculation prior to Mr Shachar speaking with Mr Roy about his injury. Mr Roy said that he did not know about Mr Shachar’s workplace injury until after the issue of Mr Shachar’s redundancy had been discussed internally.

[25] Mr Roy gave clear and persuasive evidence that the possibility of Mr Shachar making a WorkCover claim had nothing to do with the question of his redundancy. 26 Mr Roy gave evidence about the matters that he took into account, namely: the ‘ad hoc role’ overlapped with other roles such as area manager and store manager,27 and was over paid;28 there was no operational requirement or justification for anyone to perform the 2017 role any longer;29 and Mr Shachar did not want to move into a sales role, which Mr Roy said was understandable as the salary for such a role was about half Mr Shachar’s current salary.30 Further, Mr Shachar acknowledged in cross-examination that he had not suffered any adverse consequences from making a previous WorkCover claim whilst employed by the Respondent,31 nor did the company ever suggest to him that he should not make a WorkCover claim.32

[26] Mr Shachar does no more than point to the existence of statutorily protected attributes (injury, a possible WorkCover claim) and assert a causative or motivational connection between them and his dismissal. I appreciate that Mr Shachar suspected a connection between the two because the decision to make him redundant came soon after he raised his workplace injury, and because he attended the meeting on 19 March 2018 expecting to discuss his injury, only to be told that the company had decided that his position was redundant. However, there is simply no evidence of any link between his injury or the possibility of a WorkCover claim and the decision to make him redundant. On the contrary, there is direct evidence categorically denying such a link. There is no basis in the evidence for a conclusion that the company’s decision to dismiss Mr Shachar for reason of redundancy was contrived, or in any way associated with Mr Shachar sustaining a workplace injury, or the possibility that he would make or had made a WorkCover claim.

Changes in the operational requirements

[27] Mr Shachar contended that, irrespective of whether the company wanted his job to be done by anyone, there was ‘no change in the operational requirements of the enterprise’, as required by s 389 of the Act. He says that the company did not identify any such change; rather, it simply decided that the role was not needed.

[28] Mr Shachar submitted that examples of ‘changes in operational requirements’ would include a downturn in trade that has reduced the number of employees required, or a site or business closure, or the completion of a project. He submitted that no such change had been identified. He referred to the decision in Baker v Roy Morgan, where Gooley DP stated that ‘adesire to do things differently is not enough’. 33 He appeared to contend, in reliance on this passage, that the business must be affected by some external force that brings about the change in operational requirements. I do not accept this contention.

[29] In order for a dismissal to be a case of genuine redundancy, it must be established on the evidence that the employer no longer required the relevant job to be performed by anyone because of changes in the operational requirements of its enterprise. I quite agree that a mere ‘desire to do things differently’ would not be enough, because evidence of a mere desire does not say anything about ‘operational requirements’. But if the employer decides that its operational requirements have changed, and as a result, it no longer wants a particular role performed by anyone, this is plainly enough. The change to the operational requirements of the enterprise can arise from external events, but so too can it come about from internal matters, such as decisions that result from a reassessment or reappraisal conducted by the business of its own needs. It is the enterprise that determines what its operational requirements are. If an employer decides that a role is now surplus to operational requirements, there is a change in the operational requirements. This construction is in keeping with the plain meaning of the expression ‘change in operational requirements’; a reading down of the expression to require the intercession of an external force that brings about the change in operational requirements is neither textually supportable nor commercially sensible.

[30] I note that the examples of a change in the operational requirements of an enterprise cited in the Explanatory Memorandum (EM) to the Fair Work Bill include an employer restructuring its business to improve efficiency. 34 Mr Roy gave evidence that a review of all positions was conducted and that it was considered that the 2017 role was no longer required, because all of the tasks could be performed by other people.35 Mr Roy also said that Godfreys’ general manager had decided that he, as state manager, would ‘area-manage’ two stores directly (the Clayton and Fountain Gate stores), so as to bring Victoria into line with the role of state manager in other states.36 I accept the company’s contention that it had decided to adopt a leaner management structure.37 This is a further basis on which it can be concluded that Godfreys no longer required Mr Shachar’s job to be performed by anyone because of changes in the operational requirements of its enterprise. However, it follows from my analysis above that even without this, it would be sufficient for the company to prove that it had determined that the role was now surplus to operational requirements. This would be a change in those requirements for the purposes of s 389.

[31] Based on the evidence before me, I find that Godfreys no longer required Mr Shachar’s job to be performed by anyone because of changes in the operational requirements of its enterprise. 38

Did the company comply with any consultation obligations under an award or agreement?

[32] Next it is necessary to consider whether Godfreys complied with any obligation in a modern award or enterprise agreement that applied to Mr Shachar’s employment to consult about the redundancy.

[33] It was common ground that Mr Shachar’s employment was not covered by the Godfreys Employee Collective Agreement 2009. However, Mr Shachar contended that his employment was covered by the General Retail Industry Award 2010 (the Award). The company accepted that the Award covers the employment of other employees at Godfreys’ Clayton store, but submitted that Mr Shachar’s seniority and remuneration were such that his role sat above the highest classification in the Award, namely a Retail Employee Level 8 classification of ‘Store Manager’.

[34] Mr Shachar’s remuneration was well in excess of the wage rate applicable to the level 8 classification in the Award. However this does not mean he was not covered by the Award. A person might be covered by an award but be paid above it. I note that Mr Shachar’s remuneration ($92,000) was significantly less than the high income threshold.

[35] Section 47 of the Act relevantly provides that an award applies to a person if the award covers the person. Section 48 of the Act states that an award covers persons if the award is expressed to cover them. Clause 4.1 of the Award states that it covers employers throughout Australia in the general retail industry and their employees in the classifications listed in clause 16. The question is whether Mr Shachar’s role fell within the classification structure of the Award.

[36] The most senior retail employee in the Award’s classification structure is a Retail Employee Level 8, which is defined as an employee ‘performing work in or in connection with a retail establishment at a higher level than a Retail Employee Level 7’. Clause B.8.3 states that indicative job titles which are usually used within the definition of a Retail Employee Level 8 include a ‘Shop Manager of a shop with Departments / Sections’, or a ‘Clerical Officer Level 5’.

[37] Clause B.8.5 in Schedule B of the Award provides that indicative duties and skills at Level 8 may include:

“•  Apply knowledge of organisation’s objectives, performance, projected areas of growth, product trends and general industry conditions.

“•  Application of computer software packages within either a micropersonal computer or a central computer resource including the integration of complex word processing/desktop publishing, text and data documents.

“•  Provide reports for management in any or all of the following areas:

(i) account/financial

(ii) staffing

(iii) legislative requirements

(iv) other company activities.

“•  Administer individual executive salary packages, travel expenses, allowances and company transport; administer salary and payroll requirements of the organisation.”

[38] Some of the duties of the 2017 role described in Mr Roy’s email of 6 May 2017 appear to be covered by the descriptors in clause B.8.5. Others do not. In particular, Mr Shachar gave evidence that he was responsible for setting rosters and also for recruitment at the Clayton store. 39 These functions are not covered by the Level 8 position and appear to me to be of a higher level of responsibility than the tasks of a Level 8 employee. More generally, reading all of the Level 8 descriptors together and comparing them with the duties associated with the 2017 role, I consider that the latter was clearly of a higher grade to the Level 8 classification in the Award. The 2017 role was qualitatively above the ‘shop manager’ in Level 8 who manages ‘a shop with departments / sections’. It should be remembered that there was, and still is, a store manager for the Clayton site; this person would appear to be covered by the Level 8 position in the Award. Mr Shachar’s evidence was that his position was akin to an area manager and clearly senior to the store manager. I agree.

[39] Mr Shachar contended that the Level 8 classification of the Award is not limited to the store manager. He points to the descriptor that says a Level 8 employee performs work at a higher level than a Retail Employee Level 7. I accept that the store manager is only an example of a position covered, but it provides an indication of the level of the relevant position. The Level 8 classification does not apply to all employees working in connection with stores above Level 7. The descriptors state that Level 8 employees prepare reports for management; quite plainly, the Level 8 position contemplates higher levels of management which are not covered by the Level 8 classification. It should also be noted that the other indicative job title contained in Level 8, on a par with store manager and presumably other in-scope store-related managerial roles of unspecified designation, is the role of Clerical Officer Level 5 (clause B.8.4). Employees at this level, the descriptors tell us, ‘are subject to broad guidance or direction and would report to more senior staff as required.’ Clerical Officer Level 5 and Store Manager, which share the same seniority and classification hierarchy under the Award, are of a qualitatively lower level than a position of (or position that is akin to) an area manager, albeit one with a remit for a single store. Mr Shachar’s role did not fall within the Level 8 classification under the Award.

[40] Mr Shachar argued that the ‘key requirement’ of the award’s coverage provision is that an employee performs work in or in connection with a shop, and referred in his submissions to the descriptors in the level 6 classification. However, a level 6 position would be below the store manager position. Mr Shachar agrees that his position was senior to the store manager. The Award states clearly that it applies to employees who fall within the classification structure. I am satisfied that Mr Shachar’s employment did not fall within any of them. His role was above the Level 8, the highest grade in the classification structure. His employment was not covered by the Award.

[41] Finally, Mr Shachar pointed to the fact thatMs Ruiz had referred to his ‘award’ in correspondence related to a WorkCover claim. But Ms Ruiz’s view (if it was indeed her view and not a mistake) does not affect the legal position and takes the matter no further.

[42] The Award did not apply to Mr Shachar. Accordingly, it is not necessary for me to consider the parties’ arguments about whether Godfreys complied with the Award’s consultation provisions.

Would it have been reasonable to redeploy Mr Shachar?

[43] Section 389(2) provides that 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.

[44] Mr Shachar contended that he could have been redeployed into other roles. He said that there were a large and growing number of stores and a significant staff turnover even at the Clayton store, and that this meant that other positions may have been available. He stated that an area manager had recently left the company and that this position might have been vacant; or that a customer service role might have been available at headquarters.

[45] However, Mr Roy gave evidence that the area manager who left the company was not replaced, and that Mr Dougal is the only remaining area manager in Victoria, with Mr Roy as state manager assuming ‘area manager’ duties for two company-owned stores. 40 There was therefore no area manager role to which Mr Shachar could have been redeployed. Mr Roy further stated that there was no available customer service position at the time of the redundancy.41 I accept this evidence.

[46] The company also contended that Mr Shachar rejected the offer of a sales role. Mr Shachar denied being offered a sales role. However, I take this denial to take issue with the concept of an offer, in that no detailed or formal proposal was put to Mr Shachar. Nevertheless, Mr Shachar’s own evidence was that Ms Ruiz asked a question to the effect of whether he wanted to go back to being a salesman, to which he replied no, because he was injured and could not work on the shop floor. I note that Ms Smith’s file note of the meeting with Mr Shachar on 19 March 2018 records that Ms Ruiz asked Mr Shachar if he would be interested in doing a sales role on a normal sales role salary, and that Mr Shachar said no because the salary was too low. 42 Ms Smith was not available for cross-examination, and Mr Shachar appears to contest having mentioned the salary as a reason for not wanting a sales role. It is not in contest that the salary for a sales role was around half Mr Shachar’s current salary however, and in my view it is unlikely that the role would have been attractive to Mr Shachar for this reason also. Mr Shachar did not contend in the proceedings that in fact he would have been happy to do a sales role with the corresponding wage, were it not for his injury. Further, Mr Shachar did not contend that it would have been reasonable for Godfreys to redeploy him to a sales role by making appropriate adjustments to the role in order to accommodate his injury.

[47] Mr Shachar’s evidence was that later in the meeting on 19 March 2018, Ms Ruiz asked Mr Roy whether there was anything else the company could offer Mr Shachar, and Mr Roy said no. 43

[48] The evidence establishes that a role in sales was the only possible alternative employment for Mr Shachar. 44 Mr Shachar declined such a role. There was no evidence or submission in relation to the question of whether available positions existed in associated entities of the former employer.

[49] Section 389(2) provides that a dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances to redeploy the person. In order to conclude that it would have been reasonable for an employer to redeploy a person, the Commission must be satisfied on the balance of probabilities, and based on the evidence, that there was a ‘job or a position or other work’ to which it would have been reasonable to redeploy the person. 45 In the present case, the evidentiary burden simply does not reach the requisite threshold. Based on the evidence adduced in the proceedings, and taking into account the submissions of the parties, I am not satisfied that it would have been reasonable in all the circumstances for Mr Shachar to be redeployed as contemplated by s 389(2).

The decision-maker

[50] In his final written submissions, Mr Shachar contended that Godfreys’ had not adduced evidence from the final decision-maker as to the reason for his dismissal. It pointed to the evidence of Mr Roy, who stated that the ultimate decision-maker was the chief executive officer of the company, Mr Jason Gow. 46 Mr Shachar contended that this cast doubt on the company’s reasons for dismissal, and that the Commission could not be satisfied either that the company no longer wanted Mr Shachar’s role to be performed by anyone, or that Mr Shachar’s workplace injury or WorkCover claim had not been a reason for the dismissal. However, Mr Roy stated in his evidence that he and his immediate superior, Michael Owen, together decided that Mr Shachar’s current position was not required. He said that he and Mr Owen agreed that it was the right thing to do to declare the position redundant47 and that Mr Owen said to him that he needed the CEO’s ‘sign-off’ before they proceeded.48

[51] In my view, Mr Roy and Mr Owen were the decision-makers. The fact that the CEO needed to sign off or approve the decision does not alter that fact. The evidence establishes that the company did not want Mr Shachar’s job done by anyone. The role was abolished. No one is now performing the 2017 role. There is nothing in the evidence to warrant a conclusion or even a suspicion that the dismissal was influenced by Mr Shachar’s injury or his WorkCover claim. I note that there is no reverse onus of proof in an unfair dismissal proceeding. The standard of proof is the balance of probabilities. I am more than comfortably satisfied that the evidence establishes that the company did not want Mr Shachar’s role performed by anyone because of a change in its operational requirements, and that neither injury nor WorkCover had anything to do with the matter.

Conclusion

[52] I have concluded that Mr Shachar’s dismissal was a case of genuine redundancy. Godfreys no longer required Mr Shachar’s job to be performed by anyone because of changes in the operational requirements of its enterprise. There were no relevant consultation obligations arising under the Award or the Agreement, because they did not apply to Mr Shachar’s employment. I am not satisfied that it would have been reasonable in all the circumstances for Mr Shachar to be redeployed.

[53] The company’s jurisdictional objection is upheld, and accordingly Mr Shachar’s application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

G. Dircks, for Mr Shachar

J. Hooper of counsel, for Electrical Home Aids Pty Ltd

Hearing details:

2018

Melbourne

1 August

Final written submissions:

Respondent’s submissions: 21 August 2018

Applicant’s submissions: 30 August 2018

Respondent’s submissions in reply: 10 September 2018

Printed by authority of the Commonwealth Government Printer

<PR610312>

 1   Statement of Yitzhak Shachar, paragraph 20

 2   Statement of Robert Roy, paragraph 4

 3   Second statement of Robert Roy, paragraph 2

 4   Statement of Robert Roy, attachment RR1

 5   Transcript at PN672, PN677

 6   Statement of Yitzhak Shachar, paragraph 20

 7   Statement of Yitzhak Shachar, paragraph 29; Transcript at PN303, PN305, PN409

 8   Transcript at PN402, PN477

 9   Transcript at PN414

 10   Transcript at PN416

 11   Statement of Robert Roy, paragraph 10

 12   Statement of Robert Roy, paragraph 11

 13   Transcript at PN485

 14   Statement of Robert Roy, paragraph 10

 15   Transcript at PN866

 16   Transcript at PN677 – PN682

 17   Transcript at PN718

 18   Transcript at PN792, PN854

 19   Transcript at PN239

 20   Transcript at PN871

 21   Transcript at PN654 – PN657

 22   Applicant’s final written submissions, paragraph 15

 23   Statement of Ebony Smith, paragraph 4(a)

 24   Statement of Catherine Frecker, attachment CF2

 25   Applicant’s outline of submissions, paragraph 12

 26   Transcript at PN853, PN871 - PN878

 27   Transcript at PN744 – PN769

 28   Transcript at PN707 – PN708

 29   First statement of Robert Roy, paragraph 10

 30   First statement of Robert Roy, paragraph 13

 31   Transcript at PN469

 32   Transcript at PN473

 33   [2013] FWC 6694 at [22]

 34   Explanatory Memorandum to the Fair Work Bill 2009 at [1548], example 3

 35   Transcript at PN792

 36   Transcript at PN868

 37   Respondent’s final written submissions, paragraph 13(d)

 38   See Roy Morgan Research Ltd v K Baker[2013] FWCFB 8936 at [26] and [27]

 39   Transcript at PN260 - PN264

 40   Statement of Robert Roy, paragraph 7; Second statement of Robert Roy, paragraphs 20 – 21

 41   Second statement of Robert Roy, paragraph 21

 42   Statement of Ebony Smith, ES1

 43   Statement of Yitzhak Shachar, paragraphs 58 - 59

 44   Statement of Robert Roy, paragraph 11; Statement of Catherine Frecker, paragraph 11

 45   Deborah Hallam v Sodexo Remote Sites Australia Pty Ltd [2017] FWCFB 6847 at [35]

 46   Transcript at PN872

 47   Transcript at PN776, PN778; Statement of Robert Roy, paragraph 10

 48   Transcript at PN875