[2014] FWC 2489

FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.394—Unfair dismissal

Nyree Smart
v
Tim Davies Landscaping Pty Ltd
(U2013/13133)

DEPUTY PRESIDENT MCCARTHY

PERTH, 14 APRIL 2014

Application for relief from unfair dismissal.

[1] Ms Nyree Ann Smart (the Applicant) lodged an application for Unfair Dismissal Remedy (the Application) claiming that she had been unfairly dismissed from her employment with Tim Davies Landscaping Pty Ltd (the Respondent). The Respondent objected to the Application and asserted that the dismissal was a result of a genuine redundancy.

[2] The Respondent provides landscaping services through designing and/or constructing landscape projects. The business has been operating for about 30 years and was established as a company about 22 years ago. Mr Tim Davies is the Managing Director of the Respondent and a joint owner.

[3] The Applicant was employed on 5 February 2013. She was notified of her dismissal on 14 August 2013 and her dismissal took effect on the same day. The Applicant had been employed as a Health Safety and Environmental Manager (HSE Manager). She was employed by the Respondent on a part time basis for three days per week.

[4] The Fair Work Act 2009 (the FW Act) provides that if a dismissal was a case of a genuine redundancy then the dismissal is not unfair. The FW Act in s.389(1) provides that a dismissal is a genuine redundancy if the persons job is not longer required 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 to consult about the redundancy. Then in s.389(2) the FW Act excludes dismissals from being regarded as a genuine redundancy if it would have been reasonable in all the circumstances to redeploy the person concerned. The Applicant here argued that the Respondent had an obligation to redeploy the Applicant and it would have been the reasonable course in all the circumstances.

[5] Here the Applicant argues that by application of s.389(1) the dismissal was not a genuine redundancy. They also argue if I am satisfied that the requirements of s.389(1) are met that the dismissal is excluded from being classed as a genuine redundancy by application of s.389(2).

Consideration s.389(1)

[6] The Applicant argues that there is an onus on the Respondent to prove that the financial position was the reason for the change in operational requirements and the Respondent failed to do so apparently because there was no financial statements provided, but what the Applicant describes as “fairly general evidence from the accountant and the owner”.

[7] The Applicant also seems to argue that because she was engaged during a period of poor financial performance that the Respondent’s conduct was inconsistent with the need to cut costs. For example, they also argue that the Respondent employed a receptionist during the period of poor financial performance, functions that had been performed by other administrative staff after the departure of the previous receptionist. The Applicant argues these behaviours are inconsistent with the contention that poor financial performance was a reason for a change in operational requirements.

[8] The above contentions misconstrue the operation of s.389(1). Section 389(1) provides for two conditions to be met. Firstly, it requires that it be established that the person’s job is no longer required to be performed by anyone. Secondly, it provides that the reason the job is not required to be performed by anyone is because of a change in operational requirements of the enterprise. It does not require that the employer must prove the reason behind the decision to change the operational requirements was a sound business decision, nor that the employer is obliged to disclose all of the details of their financial affairs to establish an unsustainable level of loss, or an unacceptably low profit, or an unsatisfactory trend with either. It is notable that the decision by the Respondent is not challenged as being genuine or authentic. Rather what seems to be challenged is the soundness of the decision to employ a receptionist.

[9] Here it is clear that the Respondent decided that it no longer required the Applicant’s job to be performed by anyone. The reason it was not required to be performed by anyone was because the Respondent decided to assign the responsibility for HSE with the managers and supervisors as part of their duties. The fact that there was a financial imperative as well merely reinforces the genuineness of that decision and the reasoning of the Respondent in making it.

[10] It was not suggested, and there is no evidence, nor submissions, that a modern award or enterprise agreement applied to the Applicant’s employment. Indeed it is clear from the evidence of Mr Davies that the role of HSE Manager was made redundant and HSE responsibilities returned to line managers and supervisors.

[11] I therefore find that the conditions of s.389(1) are satisfied and for this part of my considerations the dismissal was a case of a genuine redundancy

Consideration of s.389(2)

[12] The Applicant asserts that there were at least two positions that she could have been redeployed to. She claims that she could have been redeployed to a receptionist position or to a role in assisting the contracts department. Essentially the Applicant seems to be arguing that either she not have been employed in the first place, or a receptionist should not have been employed, or a new position should be created. She also asserts that if she had been redeployed to perform some of the accounts work the cost to the Respondent could have been less than continuing her employment as the HSE Manager.

[13] The Respondent asserts that a person had been appointed to the receptionist’s position when the decision was made to make the HSE Manager position redundant and the role in the contracts department would have involved creating a new position for that purpose as the function was already performed by the existing staff in the accounts department. The Respondent argues that it would not have been appropriate to not allow the receptionist they had appointed to start work, and it would defeat their purpose of reducing costs if they reallocated work of others in order to continue the employment of the Applicant. Thus, they argue that it would not have been reasonable in all the circumstances for the Applicant to be redeployed

[14] I agree with the Respondent. It would not have been reasonable in the circumstances here for the receptionist that had been appointed to not be allowed to commence work, in effect to be dismissed. It would also not be reasonable to create a position by reallocating work that was already being performed by others. I therefore find that the requirements of s.389(2) of the FW Act have not been satisfied such to make the dismissal a case of genuine redundancy.

Conclusion

[15] The Application is dismissed and an Order will issue to that effect

DEPUTY PRESIDENT

Appearances:

P Mullally of Workclaims Australia for the Applicant

N Garlick from the Respondent

Hearing details:

2014.

Perth:

February, 27.

Final written submissions:

Respondent, 6 March 2014

Applicant, 13 March 2014

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