Tapas Ghosh v Tramic Pty Ltd T/A Carrum Downs Regional Shopping Centre

[2015] FWC 4481

[2015] FWC 4481

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tapas Ghosh
v
Tramic Pty Ltd T/A Carrum Downs Regional Shopping Centre
(U2014/15437)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 3 JULY 2015

Application for relief from unfair dismissal; whether the dismissal was a genuine redundancy; application dismissed

Introduction

[1] Mr Tapas Kumar Ghosh (Applicant) was, until his dismissal with effect on 12 November 2014, employed by Tramic Pty Ltd (Respondent) as an accountant. The Applicant began employment on 8 November 2010 and is a CPA qualified accountant. The Respondent operates a chain of shopping centres of which the Applicant was employed to assist in the management of both by providing accounting duties including duties relating to payroll, managing accounting for rental tenancies within the shopping centre for which he was responsible, supplier invoice processing and the preparation of reports and statements.

[2] The reason for the Applicant's dismissal is said to be on redundancy grounds. On 28 November 2014 the Applicant applied under section 394 of the Fair Work Act 2009 (Act) for an unfair dismissal remedy. The Respondent maintains that the dismissal of the Applicant was a case of genuine redundancy within the meaning of section 389 of the Act and therefore the Applicant was not unfairly dismissed within the meaning of section 385 of the Act.

[3] Section 396 of the Act requires the Fair Work Commission (Commission) to decide, inter-alia, whether a dismissal was a case of genuine redundancy before considering the merits of the application.

[4] I have concluded that the Applicant's dismissal was a case of genuine redundancy and these are my reasons for that conclusion.

Consideration

[5] Section 389 (1) sets out the meaning of genuine redundancy and provides that a dismissal was a case of genuine redundancy if:

• 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



• the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

[6] Section 389 (2) contains an exclusion to that which would otherwise fall within the definition of genuine redundancy and provides a person's dismissal is not 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.

"Associated entity" has the meaning given by section 50AAA of the Corporations Act 2001. 1

Applicant’s job no longer required to be performed by anyone (section 389(1)(a))

[7] A job is a collection of functions, duties and responsibilities assigned, as part of the scheme of the employer’s organisation, to a particular employee. 2 Functions, duties and responsibilities may cease to be part of an employee’s job through a reorganisation or redistribution of duties, so the question then is whether the employee has any duties left to perform or discharge.3 When there is no longer any function or duty to be performed by an employee, his or her position or job becomes redundant4 or, put another way, the employer no longer requires that employee’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise.

[8] An employee’s dismissal may be a case of genuine redundancy even though there are aspects of the employee’s duties still being performed by other employees. 5 In the case of an organisational restructure or downsizing, the question will be whether the previous job has survived the restructure or downsizing, not whether the duties have survived in some form.6 It is a question whether the employee’s ‘job’ is no longer required to be performed by anyone, rather than the employee’s ‘duties’. 7

[9] The Respondent’s managing director is Mr Joseph Hellen. Mr Hellen gave evidence that since 2011 the tenancy levels across the various shopping centres that are operated by the Respondent and its associated entities have been declining. 8 He said that rental income has declined by up to 20% across those shopping centres since 2011 and that at the Carrum Downs Regional Shopping Centre, in relation to which the Applicant carried out his accounting duties, has significant square metres of vacant tenancies, a position that has pertained since mid-2012.9 In response to the falling level of demand for tenancies and to assist tenants through tough economic and trading conditions, in an attempt to retain tenants Mr Hellen said that he has allowed reductions in rentals of between 20% and 30% to some tenants.10

[10] Mr Hellen said that in late 2014 he formed the view that the shopping centre businesses including the Carrum Downs Regional Shopping Centre were not performing well and that because of the decline in tenancy income, he determined that there was a reduced need for the provision of accounting duties to be undertaken in relation to the shopping centres. 11 Consequently, Mr Hellen had decided that the accounting work no longer needed to be carried out by two full-time employed accountants and that he required only one accountant to perform the work.12

[11] For reasons, which presently are not relevant, Mr Hellen selected the Applicant as the accountant to be dismissed on redundancy grounds. 13

[12] The Applicant did not challenge Mr Hellen’s evidence concerning his economic rationale underpinning the decision to terminate the Applicant’s employment during the Applicant’s cross-examination of Mr Hellen and only disputed that evidence once the Applicant began to give evidence under cross-examination or in response to questions from me. 14 As the Applicant was unrepresented and inexperienced in advocacy, the Respondent consented to Mr Hellen’s recall so the Applicant might put propositions he asserted in his evidence to Mr Hellen.15 The subsequent attempt at cross-examination by the Applicant of Mr Hellen was largely ineffective or irrelevant16 and did not undermine the evidence given by Mr Hellen as to the business and economic rationale for the decision. I accept the evidence given by Mr Hellen in this regard.

[13] In any event, whether the business and economic rationale was sound in the circumstances of this case seems to me to be of only marginal relevance. The uncontested evidence of Mr Hellen was that he made a decision that accounting duties or functions required by the business related to the shopping centres could be carried out by one accountant. As there were two accountants performing those duties or functions, one of those accountants was no longer required and Mr Helen decided that the accountant whose employment would be terminated as a consequence of that decision would be the Applicant.

[14] This evidence leads irresistibly to the conclusion that the Respondent's operational requirements were such that it only required one accountant to perform accounting duties or functions, whereas previously those requirements necessitated two accountants. It follows from the above that the Applicant’s employer no longer required the Applicant’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise. The first limb of the definition of genuine redundancy is therefore satisfied.

[15] The Applicant pointed to the notation on the separation certificate given to the Applicant by the Respondent at about the time of the dismissal. 17 The separation certificate provides for a number of other options describing the reason for the separation. Two of those options are "redundancy" and "shortage of work". In the instant case the Respondent marked "shortage of work" on the separation certificate as the reason for the dismissal. I consider that nothing turns on this and indeed the notation as marked by the Respondent is consistent with the evidence that has been given by Mr Hellen. Ultimately, it is a question of fact whether and employer no longer requires a person's job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise. As the Respondent in this case decided that the accounting duties and functions could and should be performed by the one accountant, self-evidently there was a shortage of work for the other.

[16] The Applicant’s final submissions largely failed to engage with the central issue that must be determined. Those submissions again seek to take issue with the economic rationale of the decision to dismiss the Applicant rather than engaging with the question whether the Respondent no longer required the Applicant’s job as an accountant to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise. As I have indicated the above, whether the Respondent’s decision that the operational requirements of the business require one accountant only is based on sound economic business grounds is largely beside the point. That is the decision that the Respondent made. A consequence of that decision was that only one job as an accountant was required. The Applicant’s job as an accountant was no longer required and the Respondent dismissed him for that reason.

[17] The Applicant also spent a great deal of time during his evidence and in cross-examination of Mr Hellen seeking to explore the reason that he was selected for dismissal on redundancy grounds rather than the other accountant or some other employee. This line of enquiry concerns the merits of the dismissal. In assessing whether the dismissal of the Applicant is a case of genuine redundancy, the merits of the unfair dismissal case might later be advanced, but are not relevant. As section 396 of the Act makes clear, the Commission is to decide whether a dismissal was a case of genuine redundancy before considering the merits of the application.

Compliance with consultation obligation under applicable award or enterprise agreement ((section 389 (1)(b))

[18] Section 389(1)(b) contains the second limb of the definition of genuine redundancy. It requires that the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy. The requirement that consultation occur in relation to the redundancy only arises, for the purposes of the definition, if a modern award or enterprise agreement applied to the Applicant’s employment.

[19] The Respondent maintains that there is no modern award or enterprise agreement that applied to the employment of the Applicant. This was not contested by the Applicant nor did he point to any modern award or enterprise agreement that applied to his employment with the Respondent at the time of his dismissal. I have not been able to identify any modern award that might have applied. There is certainly no enterprise agreement that applied to the Applicant's employment. In the circumstances, I am satisfied that the Applicant was not covered by a modern award or by an enterprise agreement that applied to his employment with the Respondent. The issue whether the Respondent complied with any consultation obligations under such an instrument does not therefore arise. The second limb of the definition of genuine redundancy is therefore also satisfied.

Reasonable in all the circumstances for the person to be redeployed (section 389 (2))

[20] Section 389 (2) provides that a dismissal is not a case of genuine redundancy if it would have been reasonable in all of the circumstances for the person to be redeployed within the employer’s enterprise or the enterprise of an associated entity of the employer.

[21] As a Full Bench of this Commission observed in Technical and Further Education Commission v Pykett 18 there must be an appropriate evidentiary basis for such finding. Facts that are relevant to such a finding will usually be peculiarly within the knowledge of the employer rather than the former employee and that if an employer asserts that a dismissal was a case of genuine redundancy the employer will ordinarily be expected, relevantly under this head, to adduce evidence as to whether 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 circumstances to redeploy the former employee.

[22] The question whether redeployment of an employee is considered reasonable will depend on the circumstances that exist at the time of the dismissal and a consideration of the following non-exhaustive list of matters may be relevant:

• whether there exists a job or a position or other work to which the employee can be redeployed;



• the nature of any available position;



• the qualifications required to perform the job;



• the employee’s skills, qualifications and experience; and



• the location of the job in relation to the employee’s residence and the remuneration (pay and entitlements) which is offered. 19

[23] Where relevant, an employer must consider whether it is reasonable to redeploy an employee to an associated entity and the degree of managerial integration between the different entities is likely to be a relevant consideration. 20

[24] It is accepted that the four entities (including the Respondent) constituting the Hellen Group are associated entities. Collectively, these entities employed nine employees (including the Applicant) at the time the Applicant's dismissal. 21 Mr Hellen gave evidence that he had considered the possibility of redeployment of the Applicant but given the nature of the business is conducted by the four entities and the small number of employees employed by those entities, there were no positions into which the Applicant can be redeployed. There is no evidence of any position with the Respondent or with an associated entity of the Respondent available into which the Applicant might have been redeployed. The Applicant did not challenge the evidence given by Mr Hellen nor did he lead any evidence pointing to the existence of any such position. The Applicant made no submission to the effect that redeployment within the Respondent's enterprise within the enterprise conducted by an associated entity of the Respondent was possible or practical.

[25] In the circumstances I am satisfied that it was not reasonable in all the circumstances for the Applicant to be redeployed within the Respondent’s enterprise or the enterprise of an associated entity of the Respondent.

Conclusion

[26] For the reasons given above, the Applicant's dismissal was a case of genuine redundancy within the meaning of section 389 (1) of the Act and the exclusion in section 389 (2) of the Act does not apply. The application must be dismissed. In order to effect this decision is separately issued in PR569033.

DEPUTY PRESIDENT

Appearances:

T. Ghosh on his own behalf

N. Barkatsas for Tramic Pty Ltd T/A Carrum Downs Regional Shopping Centre

Hearing details:

Melbourne.

2015

8 May

Final written submissions:

Respondent, 2 June 2015

Applicant, 16 June 2015

 1   See section 12

 2   See Jones v Department of Energy and Minerals (1995) 60 IR 304 at 308; cited in Ulan Coal Mines Ltd v Howarth (2010) 196 IR 32 at [17]

 3   Ibid

 4   Ibid

 5   See for example Dibb v Commissioner of Taxation (2004) 136 FCR 388 at 404‒405

 6   See Kekeris v A. Hartrodt Australia Pty Ltd T/A a.hartrodt [2010] FWA 674 at [27]

 7   Ulan Coal Mines Ltd v Howarth (2010) 196 IR 32 at [17]

 8   Exhibit R1 at [7]

 9   Ibid at [8]

 10   Ibid at [11]; Transcript PN 594-PN597

 11   Ibid at [14]-[15]

 12   Ibid at [15]

 13   Ibid at [17]-[18]

 14   See for example Transcript PN424, and PN534-PN535

 15   Transcript PN 542-PN546

 16   Transcript PN 589 – PN620

 17   Exhibit A1

 18   [2014] FWCFB 714; see also Jain v Infosys Limited [2014] FWCFB 5595

 19   See Ulan Coal Mines v Honeysett (2010) 199 IR 363 at [26] – [28]; Technical and Further Education Commission T/A TAFE NSW v Pykett [2014] FWCFB 714 at [36]

 20   See Ulan Coal Mines v Honeysett (2010) 199 IR 363 at [27]

 21   Transcript PN 192 – PN197, PN 325-PN 330

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