Tuan (Bahar) Morseth v Accor Australia and New Zealand Hospitality Pty Ltd T/A Pullman and Mecure Hotel Melbourne, Albert Park

[2016] FWC 1479

[2016] FWC 1479

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tuan (Bahar) Morseth
v
Accor Australia and New Zealand Hospitality Pty Ltd T/A Pullman and Mecure Hotel - Melbourne, Albert Park
(U2015/14955)

COMMISSIONER RYAN MELBOURNE, 21 MARCH 2016

Application for relief from unfair dismissal- jurisdictional objection - genuine redundancy.

[1] The Applicant, Mr Morseth, filed his unfair dismissal application on 11 November 2015. The Respondent filed an Employer Response on 20 November 2015 in which the Respondent contended that the dismissal of Mr Morseth was a case of genuine redundancy. Directions were issued to both parties requiring both parties to file an outline of submissions and any witness statements dealing with both the jurisdictional issue of genuine redundancy and the merits of the unfair dismissal application.

[2] The matter was listed for hearing on 29 February and 1 March 2016 in relation to both the jurisdictional challenge of genuine redundancy and the substantive merits of the unfair dismissal application.

[3] Mr Morseth was unrepresented and Ms Olivia Hazledine, Director of Human Resources, represented the Respondent.

[4] For the purpose of s.396 of the Act, I am satisfied that the application was filed within the time limit specified by s.394, and that the Applicant is a person protected from unfair dismissal and that the Small Business Fair Dismissal Case does not apply.

Background

[5] The Applicant was employed as a Car Park Supervisor and commenced in that role with the respondent on 16 May 2011.

[6] In June 2015 Mr Llewellyn Wyeth commenced as the new General Manager of the Respondent. Shortly after his commencement Mr Wyeth identified that a review of all of the Respondent’s operations was necessary in order for the Respondent to meet its budget. He commenced such review across all areas of the business and instructed his managers in August 2015 to begin the consultation process with staff.

[7] On 18 August 2015 at 3.30pm a meeting took place between the Applicant and the Human Resources Manager (Lucretia Burton) and Regional Human Resources Manager (Rochelle Choyna) to discuss the business review being undertaken. At that meeting the Respondent submitted that it advised Mr Morseth that a possible outcome of the operational review was that his role may be made redundant. Mr Morseth in his written submissions describes what occurred at that meeting as:

“At this meeting they said with the new General Manager taking over the business there will be changes to the business. They did not discuss about any changes in my position in the Car Park that they were going to do. They only questioned from me regarding my role and the duties that I perform as the Car Park Supervisor….”

[8] On the 16 September 2015 Ms Choyna and Ms Hazledine met with
Mr Morseth. The Respondent submits that during that meeting the Applicant was offered the opportunity to have a witness/support person present, which he declined. The Respondent further submits that it was explained to the Applicant that the purpose of the meeting was to consult further regarding the review of the Car Park and that no decision had been made in relation to the Car Park. Ms Choyna advised Mr Morseth that a decision would be made within the following week and that when the decision was made Ms Hazledine would meet again with Mr Morseth.

[9] Mr Wyeth made the definite decision that the role of Car Park Supervisor was no longer required on Friday 18 September 2015. On the same day Ms Hazledine advised Mr Morseth by telephone and email that a meeting would take place on Monday 21 September 2015 and again offered him the opportunity of having a witness/support person present, which he declined. Mr Morseth was not told of the decision on 18 September 2016.

[10] At a meeting on 21 September 2015, Ms Hazledine advised Mr Morseth that his role as Car Park Supervisor was redundant due to operational requirements and that his employment would end on 21 October 2015, unless he chose to take up an alternative role with the Respondent. The only alternative role offered to Mr Morseth was a Porter position which was at a lower rate of pay. Mr Morseth at that meeting was provided with a letter headed ‘Termination of your employment by reason of redundancy which detailed his redundancy entitlements.

Genuine Redundancy

[11] The relevant provision of the Act is s.389 which is 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.”

[12] It is clear from the evidence of Mr Wyeth that the Respondent undertook a review of all of its operations because of a shortfall in its budget and that this was the cause of the Applicant's job being made redundant. I am satisfied therefore that the Respondent met the requirements of s.389(1)(a) of the Act.

[13] The Applicant’s submissions refer to the consultation clause in the applicable Modern Award, the Hospitality Industry (General) Award 2010. However, there was an enterprise agreement which covered the Applicant during his employment, The Sebel & Citigate Albert Park Melbourne Enterprise Agreement 2009 (the Agreement), and that Agreement contains a consultation clause largely in the terms of the Modern Award.

[14] The consultation term of the Agreement is triggered by a definite decision to introduce major change. The definite decision in this case is the decision made on 18 September 2015 by Mr Wyeth to make the position of Car Park Supervisor redundant.

[15] In particular the consultation term states:

“36.5 As soon as practicable after making its decision, the Employer must discuss with the relevant Employees:

36.5.1 the introduction of the change;

36.5.2 the effect the change is likely to have on the Employees;

36.5.3 measures the Employer is taking to avert or mitigate the adverse effect of the change on the Employees; and

36.6 For the purposes of the discussions outline in clause 36.5, the Employer must provide, in writing, to the relevant Employees:

36.6.1 all relevant information about the change including the nature of the change proposed; and

36.6.2 information about the expected effects of the change on the Employees; and

36.6.3 any other matters likely to affect the Employees.”

[16] The Applicant argues that once the definite decision was made, the Respondent did not engage him in a discussion as required by clause 36.5 of the Agreement, but rather presented him with written advice of his actual termination at a meeting which took place on the Monday after the decision was made on Friday 18 September 2015 1, thus effectively ruling out any discussion.

[17] Further, clause 36.6 of the Agreement requires information to be given about the: “change proposed” and “expected effects of the change” suggesting that the written advice to be given to an employee should be provided to an employee prior to the implementation of the change.

[18] Ms Choyna, in cross examination by the Applicant, gave the following evidence:

“That's the redundancy letter?---I'm not actually understanding exactly what you're asking for.  You did receive a letter telling you of our outcome.  What we didn't do is provide you a letter telling you what the business is doing specifically if that's what you're asking.

Yes, I ask for the Act - there is a special clause that you have to - - -?---We believe our consultation was verbal; that we weren't required then to put it in writing during the process.” (PN123-124)

[19] It is clear that the requirements of clause 35 and 36 of the Agreement were not complied with as there was no discussion as per clause 36.5 and the written advice was not in the form provided for in clause 36.6 of the of the Agreement.

[20] Non-compliance with clause 36 of the Agreement means that the Respondent has not met the obligation in s.389(1)(b) of the Act. The consequence flowing from this is that dismissal of Mr Morseth cannot be a case of a genuine redundancy within the meaning of s.389 of the Act.

[21] Having determined each of the initial matters, required to be considered before the merits of the application can be considered I now turn to s.387 of the Act.

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

[22] In considering the criteria in s.387 I am required to consider each criteria which is relevant and only those criteria which are relevant.  2

Was there a valid reason relating to Mr Morseth’s capacity or conduct? (s.387(a))

[23] The dismissal did not relate to Mr Morseth’s capacity or conduct, so this matter is not relevant to my consideration.

Notification and opportunity to respond (ss.387(b) and (c))

[24] Given the specific link between these two criteria and the criteria in s.387(a) it is clear that neither of these two criteria are relevant in this matter.

Support person (s.387(d))

[25] There was no unreasonable refusal by the employer to allow Mr Morseth to have a support person present to assist at any discussions relating to the dismissal.

Unsatisfactory performance (s.387(e))

[26] The dismissal did not relate to unsatisfactory performance, so this matter is not relevant to my consideration.

Size of the enterprise and human resource management (s.387(f) and (g))

[27] These two criteria have a neutral value in the present matter. The Respondent is a large employer and has dedicated human resources specialists and expertise.

Other matters (s.387(h))

[28] I have already determined that the dismissal was not a genuine redundancy within the meaning of s.389 of the Act given that the Respondent did not meet the requirements of s.389(1)(b). However I consider that the redundancy of Mr Morseth’s job and the actions of the Respondent in relation to that redundancy are relevant matters in considering whether the dismissal was an unfair dismissal and that these matters support a finding that the dismissal was not was harsh unjust or unreasonable.

[29] Mere non-compliance with the requirement in clause 36 of the Agreement does not mean that the dismissal must be unfair.

[30] In the present matter I consider that even if the Respondent had complied with the consultation requirements of the Agreement, that the outcome would have been the dismissal of Mr Morseth. The Evidence before the Commission makes clear that the Respondent intended to remove Mr Morseth’s job as part of a process to reduce costs. That job has not been replaced

[31] The Applicant was paid a redundancy payment required under the Act, a sum of 8 weeks’ pay in total.

Conclusion

[32] There is only one criteria under s.387 which is relevant, namely s.387(h).

[33] Even though the Respondent’s procedures were found not to be technically compliant with s.389(1)(b), the role of Car Park Supervisor would still have been redundant. The relevant matters considered under the criteria of s.387(h) weigh strongly in favour of a finding that the dismissal was neither harsh nor unjust nor unreasonable. On balance I am satisfied that the dismissal in this matter was not harsh, unjust or unreasonable.

[34] The application is dismissed.

COMMISSIONER

Appearances:

Mr T. Morseth on his own behalf.

Ms O. Hazledine for the Respondent.

Hearing details:

2016.

Melbourne:

February 29.

 1   Transcript at PN119.

 2   Sayer v Melsteel P/L, [2011] FWAFB 7498 at pars [14] and [20] and Chubb Security Australia P/L v Thomas, Print S2679 at pn 41.

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