[2012] FWA 9662 |
|
FURTHER DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Warren McIlwraith
v
Toowong Mitsubishi Pty Ltd
(U2011/11162)
COMMISSIONER CRIBB |
MELBOURNE, 22 NOVEMBER 2012 |
Application for unfair dismissal remedy – jurisdiction - genuine redundancy - objection dismissed.
[1] This decision concerns the third jurisdictional objection by Toowong Mitsubishi Pty Ltd (the respondent or the Company) to the application by Mr Warren McIlwraith (the applicant) for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act).
[2] The first hearing took place on Tuesday, 17 January 2012 which dealt, in part, with the respondent’s first two jurisdictional objections: that the applicant was not covered by a modern award or enterprise agreement; and that the applicant’s annual rate of earnings exceeded the high income threshold. It was common ground between the parties that the applicant was not covered by an enterprise agreement. Following submissions regarding whether or not the applicant was covered by a modern award, the Tribunal determined in transcript that Mr McIlwraith was not covered by a modern award (first jurisdictional objection). 1 Following submissions during the hearing, and further subsequent written submissions by both parties, the Tribunal determined, in its decision issued on 30 April 20122, that the applicant’s rate of earnings did not exceed the high income threshold and dismissed the respondent’s second jurisdictional objection.
[3] The third jurisdictional objection by the respondent (which this decision concerns) is based on the contention that Mr McIlwraith’s dismissal was a case of genuine redundancy. A hearing was held on 3 May 2012 and written submissions were filed by the respondent on 25 May 2012 and by Mr McIlwraith on 6 June 2012. Written submissions in reply were provided by the respondent on 22 June 2012. In addition, both parties relied on material that had been tendered during the hearing of the first two jurisdictional objections.
[4] During the hearing on 3 May 2012 regarding whether or not this was a case of genuine redundancy, Mr Craig Burgess, Managing Director of Toowong Mitsubishi and Kia Scenic Motors, gave evidence, as did Mr McIlwraith.
[5] The decision that follows, therefore, deals only with the company’s third jurisdictional objection - whether Mr McIlwraith’s dismissal was a genuine redundancy.
THE ARGUMENTS
The Company
[6] It was argued by the company that Mr McIlwraith’s dismissal was a genuine redundancy because:
Job no longer required
[7] The respondent submitted that it no longer required the position of Financial Controller to be performed by anyone due to the substantial growth in business through the acquisition of a new franchise and an increase in the size of the service and used car departments together with the projected future growth. 5 It was therefore necessary for the business and financial systems and controls to be improved to assist with the growth of the business.6 It was decided that this could be achieved by creating a Dealership Accountant position which required formal (tertiary) accounting qualifications.7 Mr Burgess’ evidence was said to be that he reconsidered the structure and make-up of the workforce and took into account advice from his accountants and what he had learned from review meetings with Deloittes.8 It was contended that these operational changes were the impetus for the company to decide to restructure the business to effect a change in the skills matrix in order to increase efficiency.9
[8] The company argued that the Dealership Accountant would be required to advise on tax matters (income, FBT, GST and payroll tax) and also on Corporations law and Superannuation. The new position would also be required to analyse and interpret financial reports/results and provide advice/recommendations to the Managing Director on ways to increase revenue and decrease expenditure. Further, the Dealership Accountant would prepare detailed budgets and performance reports, analysing overall performance, variances and benchmarking. 10 It was argued that the position of Financial Controller was abolished and replaced with the Dealership Accountant position. The latter was said to have assumed the duties of the Financial Controller but with the addition of the provision of strategic and analytical accounting advice to the business.11 The additional duties were said to include subletting, debtor control and unapplied time.12
[9] The Company contended that the Full Bench decision in Ulan Coal Mines Limited v Henry Jon Howarth and others 13 (Ulan Mines case) held that it was still a genuine redundancy if the employer wished to change the skill mix of staff to improve operational efficiencies.14 Therefore, the company’s restructure was a genuine redundancy because Mr McIlwraith could not perform the additional duties to be undertaken by the Dealership Accountant as he did not possess a tertiary accounting qualification.15
Redeployment
[10] It was submitted that it was Mr Burgess’ uncontested evidence that there were no available or suitable positions within the business into which Mr McIlwraith could have been redeployed. 16 It was argued that Mr Burgess had considered what opportunities there were to redeploy Mr McIlwraith.17 It was contended that there was no obligation for the Company to create a role or to displace another employee to accommodate the person being made redundant.18
Mr McIlwraith
[11] It was submitted by Mr McIlwraith that his dismissal was not a case of genuine redundancy as the job was still required to be done. 19 He argued that there has been no evidence provided by the company to support the contention that, having regard to the growth of the business, it was necessary to appoint a qualified accountant.20 Further, it was stated that no evidence had been provided by the company as to the details of the restructure which was necessitated by a change in operational requirements.21
[12] Mr McIlwraith contended that the Financial Controller (Dealership Accountant) commenced employment on his (Mr McIlwraith’s) final working day. In addition, it was argued that he had performed such duties as subletting, debtor control, unapplied Time, regulatory compliance and cash flow, during the normal course of his work. 22
[13] The respondent’s contention that the role of Dealership Accountant required an accounting degree was challenged by the applicant. This was on the basis that the job advertisement of June 2011 referred to a position of Financial Controller and made no reference to the degree qualification requirement. Further, it was stated that the only formal reference to the position title and qualification requirement was contained in the Position Description which was presented to Mr McIlwraith on 15 August 2011. It was Mr McIlwraith’s conclusion that the Position Description was drafted after the new appointment had been finalised. 23
[14] Mr McIlwraith argued that the job he had previously performed still existed and that the duties were still required to be done and were being done by the new appointee. It was contended that the job advertisement of June 2011 listed all of the requirements and functions that he was currently performing. He stated that the job title in the advertisement and his job title were identical. In addition, it was said that the advertisement resulted in the recruitment of his replacement. 24
[15] Mr McIlwraith contended that, on 12 August 2011, Mr Burgess had told him that he was not the Financial Controller to oversee the business over the next 5 years. He was advised to accept a redundancy. When asked on 15 August 2011 about the redundancy offer, it was Mr McIlwraith’s recollection that he had asked Mr Burgess to formalise the offer. 25 He then received a letter advising him that his position was at risk due to the review of the businesses and specifically the Financial Controller’s position. Attached to the letter was a copy of the Position Description for a Dealership Accountant.26 On 19 August 2011, when asked by Mr Burgess if he had considered his position, and on saying that he was seeking legal advice, it was recalled that he was terminated immediately.27
Redeployment
[16] It was argued by Mr McIlwraith that, over the 10 months prior to his dismissal, when the company was undertaking the review process, there was no discussion with him regarding redeployment nor about possible retirement plans instead of summary dismissal. Further, he was not informed of the “need” to employ a degree qualified accountant nor was he given the opportunity to increase the level of his qualifications or advised to undertake further study. As at the effective date of his dismissal (19 August 2011) it was stated by Mr McIlwraith that he was immediately replaced. He indicated that his age was 66 years, 11 months and that his length of service with the respondent was five years. 28
WITNESS EVIDENCE
Mr Burgess
[17] It was Mr Burgess’ evidence that, with the business growing over a period of years, the original role that Mr McIlwraith had been employed in had also changed. He pointed to having acquired Beaudesert Motors Proprietary Limited and the fact that the Toowong Motors Proprietary Limited business had increased the size of its used-car and service departments. In addition, the Kia Motors franchise had been acquired. Therefore, the turnover of the business had increased dramatically. 29
[18] Mr Burgess also explained that, during 2010, he had been involved in industry specific comparative meetings for motor car dealers provided by Deloittes. As a result of those meetings and discussions with Deloittes personnel, he had formed the opinion that he required somebody in the role of Dealership Accountant who could value add and assist in the growth of the business. He then held similar discussions with the company's own external accountants (DBO). Mr Burgess stated that both Deloittes and his external accountants confirmed the view that he had reached - that a Dealership Accountant should be a value add role (not just producing financial results but dissecting those results and identifying those areas that really needed addressing). 30
[19] It was Deloittes’ and his external accountants’ opinion that it was generally regarded within the industry that part of the function of a Dealership Accountant/Financial Controller was responsibility for helping or looking for financial improvements in the business. It was also said to have been their recommendation that the role required a qualified accountant who would have the necessary skills to undertake the analytical/strategic accounting and diagnostic work. 31 Based on his history, it was Mr Burgess’ view that Mr McIlwraith did not have the required skill set to do that.32
[20] Mr Burgess gave examples of tasks that a tertiary qualified accounting person could undertake which had not been performed in the past. These included managing outstanding factory debtors, cash flow modelling and unapplied time. 33
“Value add”
[21] It was explained by Mr Burgess that “value add” meant providing a diagnosis of the business in terms of areas where there could be cost savings and where the business could be grown. This included drilling down in underperforming areas to establish as to why the underperformance was occurring or in areas where savings could be made or where increases could be achieved from a gross income perspective. 34 He described it as strategic planning and the ability to analyse the business. He contrasted this with the role that Mr McIlwraith was performing which was keeping the accounts all clean and tidy and producing the financial results for the end of the month but not delving into those results to really identify the areas where gains could be made.35
[22] Mr Burgess also gave evidence that Mr McIlwraith had not been asked specifically to undertake the more strategic analytical work. He also said that the strategic/analytical work was part of the role of a Dealership Accountant or Financial Controller in the industry. 36
Decision to restructure
[23] The decision to create the position of Dealership Accountant was said to have come about with the restructure which Mr Burgess said he had been thinking about since 2010. 37 He recalled that the process had started in 2010 when he knew the difficulties that the company was having in certain administrative areas within the business and that he was actively courting another brand for the business so that it would grow again. He said that he had also been working on growing the existing used car and service departments. There had then been attendance at the Deloittes meetings. It was stated that the decision to restructure was made in the months leading up to August 2011.38 Mr Burgess said that he had made the decision prior to placing the job advertisement for the Dealership Accountant in July 2011.39 It was confirmed by Mr Burgess that he had advised Mr McIlwraith, in a letter dated 15 August 2011, that a restructuring would be occurring.40
Job advertisement
[24] With respect to the job advertisement for a Financial Controller, placed by BDO in Go Auto, Mr Burgess confirmed that the title of the position in the advertisement was different to the position title in the Position Description. He explained that, in the industry, the two titles were interchangeable for the same position. 41 Mr Burgess agreed that the job advertisement did not specify that a degree qualified accountant was being sought. However, it was his evidence that the brief given to BDO clearly required a tertiary qualification and that the Position Description stipulated a degree in accounting.42 It was confirmed by Mr Burgess that the current Dealership Accountant was selected from the applicants for the position that was advertised in June 2011.43
[25] It was Mr Burgess’ evidence that the new Dealership Accountant commenced on 22 August 2011. He thought that there had been a period of time when that office was vacant. Mr McIlwraith was made redundant on 19 August 2011. 44 Mr Burgess did not believe that an appointment had been made and the starting date confirmed as at 12 August 2011.45
Meeting in late June or July 2011
[26] The initial discussion with Mr McIlwraith regarding the business’ growth, the requirement for further growth and that his position had changed and that he required a person with a different skill set to help with that growth was said to have taken place in late June or July 2011. 46 Mr Burgess confirmed that Mr McIlwraith had responded that he understood that the business was growing and that he would be able to assist in supporting the business’ growth.47 He also said that, following this discussion, there were no initiatives undertaken by Mr McIlwraith.48
Meeting on 12 August 2011
[27] It was Mr Burgess’ evidence that he advised Mr McIlwraith, on 12 August 2011, that he did not see his role helping him grow the business. When asked what he proposed, Mr Burgess recalled saying that redundancy was an option as he needed to replace Mr McIlwraith’s role with someone who had accounting qualifications. Mr McIlwraith's response was said to be that he wanted to seek advice about redundancy. 49
Meeting on 15 August 2011
[28] Mr Burgess confirmed that he gave Mr McIlwraith a letter dated 15 August 2011 advising him of the ongoing review of the business and that the restructure would now move to look at the Financial Controller function which may impact his role. The letter also said that Mr McIlwraith’s role would change significantly and that he saw his position as being at risk. Mr Burgess agreed that the letter did not refer to redundancy. Attached to the letter was the Position Description for the Dealership Accountant. 50
Meeting on 19 August 2011
[29] In his witness statement, Mr Burgess indicated that he had asked Mr McIlwraith if he had considered his position and the offer of redundancy. The response was recalled to be that he was seeking legal advice. Mr Burgess said that he had then told Mr McIlwraith that he thought that, on that basis, it would be best for both parties if his employment was finalised immediately. It was stated that Mr McIlwraith had agreed that he would leave his employment that day. 51
[30] It was confirmed by Mr Burgess that the duties of Financial Controller were still being performed either directly or in an overseeing fashion. 52 Mr Burgess also stated that the number of employees across the business had increased rather than reduced, including administration where an additional full-time administration person had been recently employed.53 He confirmed that, between 2006 and 2008, the number of employees at Toowong Mitsubishi had increased from 35 to 42. It was stated that the Scenic Motors Beaudesert dealership had been acquired on 1 July 2008 with about 16 new employees which brought the total number of employees to approximately 50. The Kia acquisition had been effective from November 2010.54
Redeployment
[31] With respect to redeployment, it was Mr Burgess’ evidence that he had looked across the business at what other roles were available and said that there weren’t any, unless he moved somebody or created a position for Mr McIlwraith. He stated that there certainly was not a role within the business that Mr McIlwraith would have been suitable for. Mr Burgess confirmed that, during the discussions with Mr McIlwraith on 12 and 15 August 2011 he did not have a conversation with him about redeployment. 55
[32] Mr Burgess agreed that he did not have a conversation with Mr McIlwraith to discuss his retirement plans. 56
Mr McIlwraith
Meeting - late June/July 2011
[33] Mr McIlwraith gave evidence that, prior to the termination meetings, he had only one meeting with Mr Burgess in around late June/July 2011. It was his recollection that, during the meeting, he shared his concerns about the Beaudesert business operation, the cash situation and the factory receivables. He said that, towards the end of the meeting, Mr Burgess told him that he needed more detailed reporting on expenses and asked if he was able to do that. Mr McIlwraith recalled that he had agreed but said that there was no other direction or requirement given to him by Mr Burgess at that time. 57
Meeting on 12 August 2011
[34] With respect to the meeting on 12 August 2011, Mr McIlwraith recounted that Mr Burgess had come into his office and said words to the effect that he was not the Financial Controller to oversee the business for the next five years. Mr McIlwraith had then asked Mr Burgess what he proposed and Mr Burgess was said to have mentioned redundancy. 58 It was Mr McIlwraith’s view that his employment was terminated during this meeting and that redundancy was not offered. Rather, it arose in response to a question Mr McIlwraith asked regarding what Mr Burgess was proposing. He thought that Mr Burgess was trying to soften the blow and that he was hoping that he, Mr McIlwraith, would take the easy option and go along with what Mr Burgess was proposing. Mr McIlwraith stated that he said that he would seek advice but that they did not discuss whether he was seeking advice on redundancy. He said that it was his intention to seek advice on the termination.59 He absolutely denied having said, mentioned, or indicated any acceptance of redundancy.60
[35] During cross examination, Mr McIlwraith accepted that his last working day with the respondent was 19 August 2011. He said there was a meeting on 12 August 2011 during which his employment was terminated. However, at the meeting on 12 August 2011, the date of effect had not been established. The date that his termination took effect was 19 August 2011. 61
Meeting on 15 August 2011
[36] It was recalled by Mr McIlwraith that Mr Burgess had asked if he had received any advice yet and what his decision was. He stated that he had asked Mr Burgess to formalise (put in writing) the termination and what he was offering (his proposal regarding Mr McIlwraith’s termination and redundancy). 62
[37] It was stated that, later that day in the afternoon, he was given the letter dated 15 August 2011 together with the Position Description by Mr Burgess. He did not believe that there was any discussion at that time. 63 Mr McIlwraith confirmed that he had not applied for the new role as he had already been sacked at the time he was made aware of it.64
[38] Mr McIlwraith was of the opinion that the termination came before the redundancy. This was on the basis that Mr Burgess had told him during the meeting on 12 August 2011 that he was not the Financial Controller to oversee the business over the next five years. 65
[39] The clear view was expressed by Mr McIlwraith that he was more than adequately performing the duties of Financial Controller and stated that he could continue to do so. 66 It was also Mr McIlwraith’s evidence that he was capable of utilising a manual spreadsheet to perform cash flow modelling exercises as he had performed these exercises in his previous employment. He explained that the company had outsourced this to an external service provider who had credible software.67 He agreed that, at one point during his tenure as Financial Controller, the business had debts owing in excess of $500,000 through the Ford Motor Company and Hyundai Motor Company.68
[40] Mr McIlwraith stated that he had a Diploma of Accounting but not a Bachelor or Masters of Accounting. 69
[41] It was Mr McIlwraith’s understanding that Mr Burgess had taken the decision to replace him prior to commissioning the job advertisement, that is, well before August 2011. He stated that there was no mention of the degree qualification prior to receiving the letter dated 15 August 2011. It was said that he was simply told that he was not the Financial Controller for the next five years. 70 Mr McIlwraith did not believe that he could be mistaken in his recollections of the discussions with Mr Burgess about his role.71
CONSIDERATIONS
[42] Genuine redundancy is defined in section 389 of the Act as:
“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.”
Section 389(1)(a)
[43] The first issue to be dealt with is whether or not Mr McIlwraith’s position was no longer required by the company to be performed by anyone because of changes in the operational requirements of the business (section 389(1)(a)). It was argued by the respondent that, due to operational changes in the business (e.g. its growth, acquisition of a new franchise), it was necessary to restructure the business by making the position of Financial Controller redundant and creating a new position of Dealership Accountant which required a tertiary qualification in accounting. A qualification was said to bring with it the (new and required) capacity to provide analytical and strategic accounting advice to the business about how to make it more productive and efficient. The former duties of Financial Controller were to be undertaken by the Dealership Accountant, in addition to the provision of strategic/analytical accounting advice (the value-add tasks).
[44] The genuineness of the redundancy was challenged by Mr McIlwraith on the basis that his job was still required to be done and that his duties were being performed by the new employee (Dealership Accountant). He said that the position that was advertised was “Financial Controller” and that the advertisement did not state that a tertiary accounting qualification was required. In addition, it was indicated that the advertisement set out the same duties that he was performing at that time. Further, he argued that he had the capacity to perform these additional functions (strategic/analytic accounting advice). He held a Diploma of Accounting but not a Bachelor or Masters of Accounting.
[45] The Explanatory Memorandum to the Fair Work Bill 2008 provides examples as to when a dismissal will be a case of genuine redundancy:
“1547 Paragraph 389(1)(a) provides that a person’s dismissal will be a case of genuine redundancy if his or her job was no longer required to be performed by anyone because of changes in the operational requirements of the employer’s enterprise. Enterprise is defined in clause 12 to mean a business, activity, project or undertaking.
1548 The following are possible examples of a change in the operational requirements of an enterprise:
[46] In this case, on the basis of the evidence before me, I find that the job of Financial Controller, occupied by Mr McIlwraith, is still required to be performed by the Company. It is being performed by the new Dealership Accountant. The Financial Controller’s tasks were not distributed amongst several other employees. Rather, they are now being performed by the new Dealership Accountant. In its final submissions, the respondent stated that the position of Financial Controller was abolished and replaced by the Dealership Accountant position. The latter position was said to have assumed all of the duties of the Financial Controller but it was also alleged that there were additional duties including strategic/analytical advice being performed by the Dealership Accountant. 72 The evidence of Mr Burgess was that these were the result of the new Dealership Accountant having a tertiary accounting degree.73 The stated reason for restructuring (abolishing) the Financial Controller position was to upgrade the skills of that position to a tertiary qualified accountant.74
[47] With respect to the respondent’s submissions that the restructuring of the Financial Controller’s position was the result of a decision that a tertiary qualified accountant was required in order to take the business forward, it is noted that the job advertisement, placed in June 2011 on behalf of the Company, did not specify the requirement for a tertiary qualification. The Company placed considerable emphasis, during the hearing and as part of its submissions, on the requirement for the new Dealership Accountant to be tertiary qualified in accounting. I do not find Mr Burgess’ explanation as to why this requirement did not appear in the job advertisement credible. He stated that it was not included because, when BDO wrote the advertisement indicating that a multi franchise metro dealer was looking for a Financial Controller, they anticipated they would get applications from qualified accountants. 75 Given that the advice from BDO (who placed the advertisement) and from Deloittes was allegedly that the business needed a tertiary qualified Dealership Accountant consistent with industry practice, it would naturally be most likely that this requirement would have appeared in the job advertisement. Further, it was Mr Burgess’ evidence that Mr McIlwraith had not been asked specifically to undertake the more strategic/analytical work.76
[48] In addition, it would appear from the evidence that the duties that the Dealership Accountant was said to have performed due to his having a tertiary accounting qualification were all duties that the applicant was performing in his role as Financial Controller. These duties are subletting, debtor control and unapplied time. In his witness statement, Mr Burgess indicated that the Dealership Accountant had improved processes and controls regarding subletting and debtor control and effectively accounted for/reported unapplied time which Mr McIlwraith had not done. 77 However, it is apparent from the evidence that these duties, had been previously performed by the Financial Controller position, albeit not seemingly to the standard required by the employer.78
[49] The respondent referred the Tribunal to the Ulan Mines case 79 and relied upon it as authority for the proposition that a restructure of the nature the respondent undertook (a change in the skill mix of the Financial Controller position) will amount to a genuine redundancy. It was submitted that the circumstances of this case are analogous to the Ulan Mine Case80.
[50] In the Ulan Mines case, the company, amongst other operation changes, sought to increase the proportion of trade qualified employees in underground crews. The consequence of this was that 14 non-trades mineworker jobs were surplus to their requirements which resulted in an overall reduction in the size of the non-trades mineworker workforce.
[51] In this decision, the Full Bench determined that:
“In the present case, the Commissioner appears not to have drawn an appropriate distinction in his reasoning between the “jobs” of the mineworkers who were retrenched and the functions performed by those mineworkers or take proper account of the nature of the restructure at the mine which led to an overall reduction in the size of the non-trades mineworker workforce. The Company restructured its operations in various ways including by outsourcing certain specialised, ancillary and other work and increasing the proportion of trade-qualified mineworkers in underground development and outbye crews. As a result, it was identified that there were 14 non-trades mineworker positions which were surplus to the Company’s requirements. The mineworkers whose employment was to be terminated were determined according to the seniority principle as provided in the Agreement. This did not mean that the functions or duties previously performed by the retrenched mineworkers were no longer required to be performed. It also did not mean that the positions of some of these mineworkers (e.g. in underground crews) did not continue, although those positions might after the restructure be filled by more senior non-trades mineworkers transferred from other parts of the operations or by trade-qualified mineworkers. However fewer non-trades mineworker jobs were required overall at the mine as a result of the operational changes introduced and, for this reason, the jobs of the 14 mineworkers selected for retrenchment could be said to no longer exist. 81 (Italics added for emphasis)
[52] Relevantly, the Full Bench found that fewer non-trades mineworker jobs were required overall, therefore the jobs of the 14 mineworkers selected for redundancy could be said to no longer exist. This case can be distinguished from the present matter as, following the restructure of the Financial Controller’s position, it cannot be said that the job no longer existed. The duties of the Financial Controller continued to be required to be performed by the Company and are being done by the new Dealership Accountant position. There has been no reduction in the number of jobs - the Financial Controller position was replaced by the Dealership Accountant position. The job previously performed by the applicant still exists. Further, it was Mr Burgess’ evidence that staffing in the administrative area had increased. 82 There is no evidence of any other restructuring in the respondent’s business except for that of the Financial Controller’s position.
[53] Taking all of this into account, I am not satisfied that the Financial Controller position that Mr McIlwraith occupied no longer exists or that the duties of that position have been distributed between several other employees so that the position no longer exists. On the basis of the evidence, I find that the job performed by Mr McIlwraith in the Financial Controller position is now being performed by the Dealership Accountant (a now tertiary qualified accountant). Therefore, it cannot be said that the company no longer requires the Financial Controller’s job to be performed by anyone as the duties of that position are now being performed by the Dealership Accountant.
[54] Accordingly, I am not satisfied that Mr McIlwraith’s dismissal was a case of genuine redundancy in that the requirements of section 389 (1) of the Act have not been met.
[55] With respect to section 389(1)(b), as it has already been found that Mr McIlwraith was not covered by a modern award or enterprise agreement, this section does not apply.
[56] Therefore, as I have found that Mr McIlwraith’s dismissal was not a case of genuine redundancy under section 389(1), there is no necessity to deal with the requirements of section 389(2).
[57] The respondent’s jurisdictional objection on the grounds that Mr McIlwraith’s dismissal was a genuine redundancy is therefore dismissed.
[58] Therefore, having previously determined that Mr McIlwraith is a person protected from unfair dismissal, what remains to be determined with respect to this application is whether Mr McIlwraith’s dismissal was harsh, unjust or unreasonable (section 385(b)).
[59] This would involve Directions being issued for the exchange of written submissions and witness statements (if required) addressing the requirements of section 385(b) and a hearing date to be set for arbitration.
[60] Another option available to the parties is further conciliation, before another Member of the Tribunal in Brisbane, as a possible avenue of dealing with this matter without the need for further formal hearing. If conciliation is unsuccessful, however, the application will need to be determined.
[61] The parties are to advise the Tribunal, within 14 days of this decision, as to which avenue is preferred.
COMMISSIONER
Appearances:
Mr McIlwraith representing himself
JA Hodgens of Gadens Lawyers for the respondent
Hearing details:
2012.
Brisbane:
May 3.
Final written submissions:
Respondent, 25 May 2012
Applicant, 7 June 2012
Respondent, 22 June 2012
1 Transcript PN 369
3 Exhibit R5 at paragraphs 5.2(a) and 5.4 - 5.26 and Respondent’s written submissions dated 25 May 2012 at paragraphs 6(a)
and 7 - 30
4 Ibid at paragraphs 5.2(b) and 5.31 - 5.33 and ibid at paragraphs 6(b) and 31 - 35
5 Ibid at paragraphs 5.4 and 6.14 and ibid at paragraph 11
6 Ibid at paragraphs 5.5 and 5.23 and ibid
7 Ibid at paragraphs 5.5 - 5.6 and 6.9 and ibid at paragraph 8
8 Respondent’s written submissions dated 25 May 2012 at paragraphs 8 and 11(c)
9 Ibid at paragraph 12
10 Exhibit R5 at paragraphs 5.9 - 5.12
11 Ibid at paragraphs 5.9 - 5.12, 5.24, 6.3 - 6.4, 6.6 and 6.10 and Respondent’s written submissions dated 25 May 2012 at
paragraphs 19 and 22
12 Exhibit R2 at paragraphs 5.5 - 5.26
14 Respondent’s written submissions dated 25 May 2012 at paragraph 14
15 Ibid at paragraphs 14, 19, 24, 27 and Exhibit R5 at paragraph 5.22
16 Ibid at paragraph 32 and ibid at paragraphs 5.31 - 5.32
17 Ibid at paragraph 32
18 Ibid at paragraph 31
19 Exhibit A1 at paragraph 6
20 Applicant’s written submissions dated 6 June 2012 at paragraph 4
21 Ibid at paragraph 5
22 Ibid at paragraphs 3 and 6
23 Ibid at paragraph 7
24 Ibid at paragraph 8
25 Exhibit A1 at paragraphs 3 - 4
26 Ibid at paragraph 4 and Attachment A
27 Ibid at paragraph 5
28 Applicant written submissions dated 6 June 2012 at paragraphs 9 - 14
29 Transcript PN 1311 and Exhibit R2 at paragraphs 1.3 - 1.6
30 Ibid PN 1311 - 1314 and 1330 - 1331, 1596 and ibid at paragraphs 4.1 - 4.14
31 Ibid PN 1330 - 1331 and 1335 and 1368 - 1369 and 1403, 1409 - 1410 and ibid at paragraphs 4.9 - 4.11
32 Ibid PN 1314 PN 1314
33 Ibid PN 1411 - 1412, 1417, and 1740 - 1766 and Exhibit R2 at paragraphs 5.5 - 5.26
34 Ibid PN 1314 - 1320
35 Ibid PN 1323 - 1328 and 1729
36 Ibid PN 1329 - 1331 and 1334 - 1336
37 Ibid PN 1583 and 1602 and 1627
38 Ibid PN 1588 - 1599 and 1605 - 1606
39 Ibid PN 1623 - 1624
40 Ibid PN 1604
41 Ibid PN 1607 - 1609, 1776, 1786 and 1807 - 1810 and Exhibit R2 at paragraphs 4.16 - 4.18
42 Ibid PN 1626, 1784 - 1787, 1795 - 1804
43 Ibid PN 1615
44 Ibid PN 1704 - 1709 and Exhibit R2 at paragraph 4.19
45 Ibid PN 1710
46 Ibid PN 1404 and Exhibit R2 at paragraph 5.1.1
47 Ibid PN 1461 - 1464 and ibid at paragraph 5.1.7
48 Ibid PN 1469
49 Exhibit R2 at paragraph 5.2.1 – 5.2.12
50 Ibid at Attachment CB10 and Transcript PN 1405 - 1407 and 1716 - 1717
51 Ibid at paragraph 5.4.1 - 5.4.12
52 Ibid at paragraph 2.2 and Transcript PN 1769 - 1770
53 Transcript PN 1771 - 1773 and 1814
54 Ibid PN 1535 - 1537, 1540 1546 - 1549 - 1564 - 1572
55 Ibid PN 1470 and 1820 - 1827
56 Ibid PN 1813
57 Ibid PN 1877
58 Ibid PN 1902 - 1908 and Exhibit A1 at paragraph 3
59 Ibid PN 1911 - 1913
60 Ibid PN 1914 - 1915
61 Ibid PN 1892 - 1899 and 2020 - 2023
62 Ibid PN 1918 - 1922 and Exhibit A1 at paragraph 4
63 Ibid PN 1932 - 1934 and ibid at paragraph 4
64 Ibid PN 1935 - 1937
65 Ibid PN 1923 - 1925
66 Ibid PN 2043
67 Ibid PN 1996 - 1998
68 Ibid PN 2044
69 Ibid PN 1999 - 2001
70 Ibid PN 2002
71 Ibid PN 2011 - 2013
72 Ibid PN 1770 and Respondent’s written submissions dated 25 May 2012 at paragraph 22
73 Exhibit R2 at paragraphs 5.5 - 5.26
74 Ibid at paragraph 4.14 and Transcript PN 1314
75 Transcript PN 1784 - 1791
76 Transcript PN 1329
77 Ibid PN 1411 - 1412, 1415, 1417, 1730 - 1739 and 1765 - 1767 and Exhibit R2 at paragraphs 5.14 - 5.16 and 5.20 - 5.24
78 Ibid
80 Respondent’s written submissions dated 25 May 2012 at paragraphs 14 - 22
81 Ibid at paragraph 19
82 Transcript PN 1814
Printed by authority of the Commonwealth Government Printer
<Price code C, PR531314>