DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Lorraine Williams
v
Northern Land Council
(U2016/11568)

Application for relief from unfair dismissal - whether genuine redundancy.

[1] Lorraine Williams was employed by the Northern Land Council (the NLC) between late October 2015 and 29 August 2016 when she was dismissed. She was employed on a casual basis as a Nursery Manager at the NLC’s Kenbi Ranger Program in Belyuen in the Northern Territory. The NLC characterises Ms Williams’ dismissal as being for reason of genuine redundancy after the exhaustion of certain surplus funds which sustained Ms Williams’ employment. Such is disputed by Ms Williams, who claims that the stated redundancy is a sham and that she was dismissed because of her supervisor’s aversion to her.

[2] Section 396 of the Fair Work Act 2009 (the Act) requires the determination of four initial matters before consideration of the merits of an unfair dismissal application. It provides as follows;

396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.

[3] Aside from the Respondent’s jurisdictional objection, namely that the dismissal was a case of genuine redundancy, neither party put forward that any other of the s.396 initial matters required consideration by the Commission. Regarding elements (a) through (c) of s.396, I find that Ms Williams’ application for unfair dismissal remedy was lodged with the Fair Work Commission within the requisite 21 day period for the making of such applications; that, owing to the length of her employment, the size of the Respondent’s enterprise and because an enterprise agreement applied to Ms Williams’ employment, Ms Williams was a person protected from unfair dismissal at the time of her termination; and that questions of consistency with the Small Business Fair Dismissal Code do not arise.

[4] This decision relates to whether Ms Williams’ dismissal was a case of genuine redundancy. For the reasons set out below, I find that Ms Williams’ termination of employment by the NLC was for reason of genuine redundancy. It follows that Ms Williams has not been unfairly dismissed within the meaning of s.385 of the Act and that her application must resultantly fail.

BACKGROUND

[5] The NLC is an independent Commonwealth statutory authority which supports Aboriginal people in the Northern Territory to acquire and manage traditional lands. As a part of its operations, the NLC receives funding from the Indigenous Land Corporation (ILC) for the Real Jobs Program, a component of which employs some 12 full-time equivalents at a remediation project at the Cox Peninsula.

[6] There was an underspend in the early period of the particular grant, which the NLC decided to utilize to engage a number of casual employees. The engagement was seen to be in line with the funding arrangement, as well as the NLC’s underlying mission to provide employment opportunities to the Aboriginal community as opportunities arise.

[7] The casual positions were not advertised - rather, candidates were identified as suitable by their unemployment status and perceived willingness to undertake short term employment of the type concerned. Steven Brown, the Kenbi Ranger Coordinator, approached the Applicant on this basis and, after an initial interest was shown by Ms Williams, the parties reached agreement for her employment by the NLC. The Respondent maintains that Ms Williams “was completely aware and fully understood that the position was a casual position that had been created and was due to underspend of funding.” 1

[8] Ms Williams’ employment commenced with the NLC in October 2015 to assist in the maintenance of a plant nursery in Belyuen, which was part of the broader Cox Peninsula Remediation Project. Her contract of employment clearly demarks her position as being on a casual basis;

“This contract relates to you being engaged to work irregular hours, on an ad hoc basis, as and when required, during each period of employment for a term of five years. As a casual employee you will:

• Only be paid for the hours of work you undertake;



• Each period of engagement will constitute a separate period of employment from any other engagement; and



• Either you or NLC may end the employment relationship by providing one hours notice.” 2

[9] The evidence regarding her ensuing working hours and patterns is consistent with her casual engagement. Ms Williams’ employment was governed by the NLC Enterprise Agreement 2011. 3

[10] Ms Williams’ duties in her role included overseeing the nursery’s development and revegetation program, the watering and maintenance of nursery plants, collection and propagation of native seeds, and general upkeep.

[11] In around June 2016, the surplus funds allocated to the casual employees had been exhausted, with the NLC submitting that no further funding would be provided. This situation was communicated to affected staff in the week commencing 4 July 2016, with the advice that the ongoing tenure of their positions would be limited. The Respondent acknowledges, and as is maintained by Ms Williams, that the Applicant was not at the relevant meeting when this was first communicated.

[12] Whether Ms Williams was notified at all is a point of conjecture between the parties. Mr Brown gave evidence that he spoke directly with Ms Williams about the pending redundancy, at a date after his briefing of the other staff. 4 Conversely, Ms Williams’ statement provides that she was given “no forewarning that the operation of the nursery was to cease”; that there was no discussion as to redeployment; nor was she afforded an opportunity to participate at Kenbi Ranger meetings.5 The Respondent submits that before 1 July 2016 Ms Williams had been working approximately 7 hours a day when she attended the worksite, but that after the group discussion her hours reduced to only 4 on each day she attended.6

[13] After the casual employees’ employment was able to be extended as far as August 2016, Mr Brown was then instructed, in early August, that he was required to terminate the casual employees’ employment. Between the time of his communication with other staff and the date of Ms Williams’ termination on 29 August 2016, other staff working alongside Ms Williams were let go. Mr Brown’s evidence is that Ms Williams was the last of the casual pool of workers to be terminated. 7 After a staggering of the terminations, on Monday, 29 August 2016 Ms Williams was notified, after an absence from work to attend her daughter’s graduation in Melbourne, that due to the lack of funding her employment was unable to be continued beyond the end of that week.

[14] The Respondent says that after notifying Ms Williams that her position was being made redundant, Ms Williams became “aggressive and displayed conduct inconsistent with the NLC code of conduct.” 8 Mr Brown gave evidence that Ms Williams made personal insults towards him, and that her conduct in that meeting prevented further discussions regarding potential redeployment opportunities within the NLC.

[15] On the other hand, it is Ms Williams’ belief that “it wasn’t because of the changes in operation requirements that I lost my job, it is because Mr Steven Brown does not like me.” 9 While the material before the Commission evidencing their prior working relationship is somewhat slight, it includes a reference to a formal complaint being made by Ms Williams against Mr Brown, which appears unresolved, and disputes by her as to correct wage payments. Ms Williams gave evidence that “when I was notified that there was no more money to pay casuals, this was done in a very direct, cruel and callous manner.”10 She also related the “behaviour of bulling and harassment” she was allegedly subjected to during the course of her employment. Ms Williams submits that her managers “conspired to deliberately get me out of the Kenbi Ranger Program for reasons unknown.”11

[16] In the meeting on 29 August 2016 Ms Williams was provided with one weeks’ notice of termination. Ms Williams also worked on 30 August 2016, her final day working at the Belyuen Nursery. The evidence also shows that Ms Williams spent 31 August 2016 on site at the Cox Peninsula Remediation site. The Applicant was not provided with any written document detailing the termination.

LEGISLATION

[17] The meaning of “genuine redundancy” is defined by the Act in s.389 in the following manner;

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.

CONSIDERATION

[18] For a dismissal to be characterised as a genuine redundancy within the meaning of s.389 of the Act, the Commission is obliged to find that a person’s employer no longer required their job to be performed by anyone because of changes in the operational requirements of its enterprise; that the employer has complied with any consultation obligation in the applicable modern award or enterprise agreement; and that it would not have been reasonable in all the circumstances for the person to be redeployed either within the employer’s enterprise or that of an associated entity of the employer.

[19] It is accepted in this regard that an employer no longer requiring a person’s job to be performed by anyone includes a circumstance in which there has been a rearrangement of an organisational structure in which the functions, duties and responsibilities of a single position have been distributed amongst other employees. An employee’s job can be found to no longer exist even though the tasks and duties they performed may continue to be performed by other employees. 12 It is accepted that the test is whether the previous job has survived restructure or downsizing, rather than being a question as to whether the duties have survived in some form.13 In parallel to this reasoning, the Federal Court has held the following about issues to be considered in relation to a “bona fide redundancy” within the meaning of taxation legislation;

“We consider that it is more accurate to say that an employee becomes redundant when his or her job (described by reference to the duties attached to it) is no longer to be performed by any employee of the employer, though this may not be the only circumstance where it could be said that the employee becomes redundant. Reallocation of duties within an organisation will often lead the employer to consider whether an employee, previously employed to perform specific functions assigned to a particular “job”, will be able to perform any available “job” existing after such reallocation. Even if the employee’s job, defined by reference to its duties, has disappeared, he or she may be able to perform some other available job to the satisfaction of the employer. In that case, no question of redundancy arises. It is only if the employer considers that there is no available job for which the employee is suited, and that he or she must therefore be dismissed, that the question of redundancy arises. If, in good faith, the employer:

• has reallocated duties;



• considers that the employee is not suitable to perform any available job, defined by reference to those reallocated duties, existing after the re-allocation; and



• for that reason, dismisses the employee,

then, for the purposes of s 27F, the employee is dismissed by reason of his or her bona fide redundancy. In the above discussion we have used the word “available” as meaning “vacant”, and the word “suitable” as meaning “within the employee’s capacity”. 14

[20] The NLC puts forward that, when it made its decision to make Ms Williams redundant, it was because there were no longer funds to continue the employment provided to the casual staff. While the NLC did what it could to prolong their employment, including by staggering the terminations over a 6 week period, ultimately the lack of funding meant that not only were those casual employees’ employment necessarily terminated, but there was no funding to redeploy them within other NLC projects.

[21] Richard Campbell, the NLC’s Real Jobs Program Coordinator, gave evidence that the casual staff, including Ms Williams, were initially engaged for a period of 6 months, based on budget estimates and available funding. Once the budgetary limitations became apparent, as a matter of “financial management” he consulted with the Kenbi Ranger Coordinator to the effect that the dismissal of the casual pool of staff would be required and instructed its staggered implementation. Mr Campbell also gave evidence that the maintenance of the plants at the Belyuen nursery would be continued by the permanent Kenbi Ranger staff as part of their normal duties, at least until a more permanent decision was made as to the nursery’s future. In effect, the NLC submits that while Ms Williams’ job no longer exists because of changes in operational requirements, nevertheless the tasks and duties she performed have since been redistributed and are being performed by several others. The NLC maintain that “[n]o other person has been employed, nor is there any one person carrying out the role that the Applicant held.” 15

[22] In response to these contentions, Ms Williams refutes the assertion that the Respondent no longer requires her job to be performed by anyone. To this end, she notes that the Belyuen nursery is still operational, and that the functions she performed are still being carried out. She says that the nursery has been operational for 6 years, and will relocate in the near future and continue its role in the Kenbi Ranger Program. Further, she says that certain casual staff are still being employed in the NLC’s Kenbi Ranger Program.

[23] While this may be so, it does not detract from the Respondent’s position that the duties previously performed by her and other casual staff, as opposed to their specific jobs, have been reallocated as part of the operational requirements of the NLC.

[24] Further, Ms Williams maintains that the real reasons for her dismissal were other than those put forward by the NLC, namely that her supervisor, Mr Brown, intended to terminate her because of the breakdown in their working relationship, as alluded to above. Mr Brown denies the accusation that he acted with vindication or callousness during the meeting on 29 August, and that there is no truth to Ms Williams’ statements that he did not like her.

[25] I am not satisfied that such was the reason for her termination. Instead, the evidence about the Respondent’s financial position at the time of the dismissal, coupled with the impromptu and limited nature of the casual employees’ engagements, lends itself to a finding that the NLC was not in a position to continue Ms Williams’ employment. The engagements were surplus to those foreshadowed by the initial ILC grant, and by their very nature of a limited scope. By 29 August 2016 all other staff had left the project. I am satisfied that, at the time the surplus funding was exhausted, and it became apparent that no further funding would be forthcoming, this put the NLC in the position where it could not budget for Ms Williams’ continued employment. Even now, the evidence discloses that the NLC’s position is one in which employment opportunities are advertised as they arise, and often on a temporary basis, under the auspices of the NLC’s mandate to support the Aboriginal community in gainful employment.

[26] I am satisfied from the evidence that, at the time she was dismissed, the NLC no longer required Ms Williams’ job to be done by anyone because of changes in the operational requirements of its enterprise. After she had left the organisation, the work that Ms Williams had performed was distributed to others.

[27] The parties agree that Ms Williams’ employment was governed by the NLC Enterprise Agreement 2011 (the Agreement). Clause 79 of the Agreement deals with redundancy and redeployment, and is set out in the following terms (noting that clauses 79.5 to 79.18, which deal with voluntary redundancy and severance benefit are not reproduced);

“79.1 For the purposes of this clause:

(a) 'redeployment' refers to the reassignment of an employee to duties at or below their classification level;

(b) 'redundancy' refers to the termination of an employee's employment with the NLC, either on a voluntary or involuntary basis;

(c) an employee is 'excess' if:

(i) the number of employees at the employee's classification level is a greater number than is necessary for the efficient and economical workings of the NLC;

(ii) the employee's services cannot be used because of technological or other changes in work practices, organisational change or changes in the functions of the NLC;

(iii) the employee is not willing to move to, or perform duties at, another locality as a result of the transfer of their duties to that locality.

79.2 This clause applies to all employees other than:

(a) casual employees; or

(b) employees employed pursuant to a fixed term contract, unless the requirement for their position ceases during the life of the contract.

79.3 The CEO will apply the following principles in situations where the NLC has excess employees:

(a) the CEO will take reasonable steps to assign a potentially excess employee to other duties at the same classification level in the NLC;

(b) where redeployment is not possible, the CEO will consider first offering voluntary redundancies to employees identified as excess.

Consultation Process

79.4 Where the CEO is aware that an employee is likely to become excess, the CEO will:

(a) advise the employee in writing at the earliest practical time, including the reason for which they are likely to become excess;

(b) hold discussions with the employee and the employee's representative, if any, to consider:

(i) measures that could be taken to resolve the situation, including redeployment opportunities for the employee;

(ii) whether voluntary redundancy might be appropriate.

(c) notify the employee in writing that they are excess if an alternative solution is not reached following the discussions referred to in paragraphs (a) and (b).” (underlining added)

[28] The parties are in agreement that Ms Williams’ employment was on a casual basis. Indeed her contract of employment provides as much, and the evidence shows she worked on such terms.

[29] The obligation on an employer to consult about a redundancy only arises when, in the case of an enterprise agreement applying to that employee, the agreement contains a requirement to consult about redundancy. After consideration of the terms of clause 79, I am satisfied that the NLC was under no such obligation to consult about the redundancies to the casual staff, including Ms Williams, by reason of the specific exclusion of casual employees from the application of this clause in the Agreement.

[30] Despite the provisions of clause 79, clause 73 requires the Northern Land Council to consult with employees over major change. That clause casts the following obligations on the employer;

“73. CONSULTATION

73.1 The NLC will consult with employees and their representatives on workplace matters which affect them. Consultation means ensuring that employees receive relevant information, providing employees with an opportunity to express their views and taking those views into consideration before final decisions are made.

Consultation over major change

73.2 For the purposes of this clause "major change" means workplace change that is likely to have a significant effect on employees and includes, but is not limited to:

(a) significant change to work practices, including multi skilling;

(b) introduction of new technology and equipment;

(c) a change to the structure, employer status, funding, functions or location of the NLC;

(d) consideration of alternative service delivery mechanisms;

(e) budgetary or other considerations that may lead to a decision to discontinue established services or programs, to reduce the size of the workforce or to declare one or more positions to be excess to operational requirements.

73.3 Where major change is contemplated, the NLC will consult with employees, the union and other employee representatives at least 1 week before deciding to implement the change. The consultation will require;

(a) a meeting of the sections or branches where change is contemplated, with discussions about workload and other implications; and

(b) a meeting with management, the union or other employee representatives to discuss the nature of the proposed change; and

(c) that management give prompt and genuine consideration to the views of the employees and their representatives about the proposed change.

73.4 The NLC will ensure full and open disclosure of the information relevant to the change prior to the introduction of the change.

73.5 The parties covered by this Agreement agree that fair and orderly processes of removing or filling affected or new positions will accompany the implementation of change, if the change requires this type of action. The details of this will be negotiated at the time.”

[31] I am satisfied that the foregoing clause applies to the circumstances from which Ms Williams lost her job and that obligations on the Northern Land Council were to consult with the group of employees affected about the matters set out within the clause. Further, I am satisfied that it followed its obligations in this regard when Mr Brown spoke with employees about the Respondent’s decisions. The fact that Ms Williams was not at the meeting on 4 July 2016 does not change that the Northern Land Council fulfilled its obligations under the clause, and it does not give rise to a separate obligation to consult directly with her. While there is a divergence of evidence between Mr Brown and Mrs Williams about whether he spoke directly with her on the subject after the general meeting, I prefer his evidence in this regard and am satisfied that he did so.

[32] The third of the genuine redundancy criteria to be considered is that within s.389(2) of the Act, namely whether it would have been reasonable in all the circumstances for a person to be redeployed within the employer’s enterprise or the enterprise of an associated entity of the employer.

[33] There is no evidence before the Commission that Ms Williams could have been redeployed into another position with the NLC. The evidence supports the view that, on 29 August 2016 when she returned from an absence and was notified of her dismissal, there was, at least, and to put it lightly, a disagreement between Ms Williams and Mr Brown. Ms Williams’ unfair dismissal application discloses that Mr Brown told her, after she questioned the legitimacy of the dismissal, that “you are very vindictive”, had told other staff that Ms Williams was “going to blow”, and started screaming at her when she asked about the reasoning for the reallocation of duties to other Kenbi Rangers.

[34] Mr Brown, as indicated earlier in this decision, denies such allegations. The Respondent provides the following alternative;

“The Applicant flew in to an abusive tyrant [sic] saying ‘that’s total crap, NLC have loads of money’ ‘You are just making this up’ ‘you should have been doing a better job at getting further funding for us’ ‘you are hopeless’, ‘you are not a ranger coordinator, I have more experience than you’. The Applicant then commenced an attack about Mr Browns wife, then her issues with the back of the land.” 16

[35] Mr Brown says that “NLC management has investigated the possibility of other duties for the Applicant, however, given the circumstances and location of work, there were no other options to explore with the employee.” 17 The Respondent submits the following in relation to its redeployment discussions with Ms Williams;

“Due to the Applicants conduct in the meeting held on Monday 29th August 2016, no further discussion was entered into regarding any other opportunities of employment (which at the time there was none) and given the volatility shown towards the coordinator, the Applicant has not been considered for further employment when opportunities have arisen since then.” 18

[36] The evidence discloses that Ms Williams worked the remainder of 29 August and again on 30 August 2016, and thereafter did not return to the the Belyuen Nursery, despite being advised that her last day of employment was to be Friday, 2 September 2016.

[37] I am satisfied that the financial circumstances faced by the NLC at the time of Ms Williams’ dismissal were such that it was not in a position to redeploy Ms Williams elsewhere in the NLC. I consider it more likely than not that the reason her employment opportunity had come about and its probable limited duration was communicated to Ms Williams when she did begin employment, and that her role was unavoidably at the mercy of the surplus funding. I have taken into account the NLC’s overarching objectives in providing meaningful employment opportunities as and when they arise, as well as its subjection to funding and budgetary constraints. I have also taken into account the circumstances of the dismissal itself, in particular Ms Williams’ absence from the workplace in the weeks leading up to the dismissal, the verbal stoush which eventuated, and Ms Williams subsequently having permanently left the workplace. Such circumstances lead me to the view that the NLC was limited in its ability to discuss and consider redeployment opportunities. Nevertheless, I am satisfied that redeployment was not reasonably open to it.

[38] For the reasons set out above, I am satisfied that the Northern Land Council’s dismissal of Ms Williams was a genuine redundancy within the meaning of the Act. The merits of her unfair dismissal application are therefore unnecessary to consider.

[39] Accordingly, I now dismiss Ms Williams’ application for unfair dismissal remedy, and an order to that effect is issued in conjunction with this decision.

COMMISSIONER

Appearances:

Ms L Williams on her own behalf.

Ms C Ellison, Chamber of Commerce Northern Territory, for the Respondent.

Hearing details:

2016.

Melbourne (by Video Link):

23 January, 1 March.

 1   Exhibit R4, Respondent’s Supplementary Submissions, [20].

 2   Ibid Attachment C.

 3   AE892103.

 4   Exhibit R2, Witness Statement of Steven Brown, [14].

 5   Exhibit A2, Applicant’s Statement of Evidence.

 6   Exhibit R4, Respondent’s Outline of Submissions, [27].

 7   Exhibit R2 [18].

 8   Ibid [21].

 9   Exhibit A1, Applicant’s Outline of Argument, [6d].

 10   Exhibit A2.

 11   Form F2 Unfair Dismissal Application, item 3.2 [23].

 12   Ulan Coal Mines v Howarth [2010] FWAFB 3488, (2010) 196 IR 32 [17].

 13   Ibid, with reference to Kekeris v A. Hartrodt Australia Pty Ltd [2010] FWA 674 [27].

 14   Dibb v Commissioner of Taxation [2004] FCAFC 126 (2004) 136 FCR 388 [43].

 15   Exhibit R4 [32].

 16   Ibid [32].

 17   Exhibit R2 [26].

 18   Exhibit R4 [36].

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