[2019] FWC 5162
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Miss Dominique Martin
v
TRNF (Pty) Ltd
(U2019/178)

COMMISSIONER SIMPSON

BRISBANE, 24 JULY 2019

Application for an unfair dismissal remedy – Extension of time granted – Job no longer required - Not a genuine redundancy because of failure to consult – Termination unreasonable because of failure to consult first – Compensation of one week’s pay appropriate.

[1] On 7 January 2019 Dominique Martin made an application under s.394 for an unfair dismissal remedy against Tessa Residential Pty Ltd trading as Tessa Residential/TRNF Pty Ltd. (It was later clarified that the legal identity of the Respondent is TRNF (Pty) Ltd).

[2] Ms Martin says she commenced employment with the Respondent on 8 May 2018 and said she was dismissed on 23 November 2018, whereas the Respondent says the dismissal was 29 November 2018. The Respondent advised that it employed 21 employees at the time of termination and on that basis the Respondent is not a small business employer.

[3] Ms Martin’s employment contract stated that her employment and minimum entitlements were subject to the Real Estate Industry Award 2010 (the Award). There was no dispute about the Award applying to Ms Martin at the time of termination.

[4] An initial directions hearing was conducted on 25 March 2019 where an issue arose about the proper service of the application. It appeared the Respondent had not been properly served, a Form F3 had not been filed, and conciliation had not occurred. Ms Martin said that there had been an attempted conciliation which was to have been on 13 February 2019 but it had not proceeded. The Respondent agreed to file a Form F3 application and I advised the matter would be adjourned to allow a conciliation conference to proceed.

[5] A further conciliation was conducted on 15 April 2019 and the matter was not resolved. I listed the matter for a further directions hearing on 23 May 2019. The Respondent did not appear at the directions hearing and the matter was listed for a further directions hearing on 27 May 2019. Ms Martin appeared for herself and Mr Thomas Voysey, Finance Director for the Respondent, appeared for the Respondent.

[6] A Form F3 filed by TRNF (Pty) Ltd stated that Ms Martin’s application had been filed against the wrong company and Tessa Residential (Pty) Ltd ABN 81161348063 is a completely different company with different directors and shareholders, and her employment contract clearly stated TRNF (Pty) Ltd ABN 93605175915. That is consistent with the name on the signed employment contract. Ms Martin indicated she was happy for the matter to proceed as an application against TRNF (Pty) Ltd and I amended the application under s.587 such that the Respondent was TRNF (Pty) Ltd.

[7] The Respondent made two jurisdictional objections, the first that the application was filed out of time and the second that the dismissal was a case of genuine redundancy.

[8] At the directions hearing on 27 May I advised that in most cases the Commission would deal with an extension of time application separately, but as this case involved an argument that the reason for the delay in filing, as well as the reason for the termination being unfair were both connected to whether the job actually still existed or not, it was preferable to hear the evidence concerning both matters once and together. Both parties accepted that approach.

[9] If the dismissal occurred on 23 November 2018 then the last day the application could have been filed within time was 14 December 2018. The application was filed on 7 January 2019 making it 24 days out of time if Ms Martin’s date of dismissal is correct and 18 days out of time if the Respondent’s date of dismissal is correct.

[10] Directions were issued on 28 May 2019 to deal with jurisdictional issues and the merits of the matter. Ms Martin was directed to file witness statements and submissions by 5pm on 10 June 2019 and the Respondent by 5pm on 24 June 2019 with any material in reply by 1 July 2019. Neither party ultimately filed witness statements from witnesses who gave evidence. Some written submissions and documents were provided to the Commission.

DETERMINATIVE CONFERENCE 8 JULY

[11] Both parties represented themselves. The parties both agreed that the matter should proceed as a determinative conference on 8 July 2019. Ms Martin gave evidence for herself and Mr Voysey for the Respondent.

Evidence and Submissions

[12] Ms Martin said that the reason for her delay in filing was that she was under the impression that her redundancy was an “actual” redundancy until she saw “her job” advertised.

[13] Ms Martin said that the Respondent advertised her job 2 to 3 weeks after making her redundant. Ms Martin said that she was informed of her redundancy in the car park before she even made it into the office and was cleared out of the office immediately.

[14] Ms Martin said she never received any formal redundancy letter or information and said she was still training the new person who had started about five weeks earlier. Ms Martin said that in the job interview with the new person it was mentioned that she would be getting her own portfolio.

[15] Ms Martin said that she was also meant to receive a pay rise at the time she was given her redundancy. Ms Martin said that she did not see this coming and was continually told of her bright future.

[16] In her oral evidence Ms Martin said that another employee by the name of ‘Kiralee’ (who Mr Voysey said was ‘Kiralee Coeley’) met her in the carpark on 23 November 2018 and advised her that the Respondent had to make changes and her job was no longer required effective “today”. Ms Martin said that she cleared her office and left that day and was paid up to 29 November 2018. Ms Martin claimed her dismissal was effective that day whereas Mr Voysey gave evidence that her dismissal was effective from 29 November and she was not required to work the notice period. He accepted he was not there on the day and could give no direct evidence about what happened.

[17] As Ms Martin’s evidence is the only direct evidence before the Commission on the issue I accept her version of the day in question and on that basis prefer the view that Ms Martin was dismissed on 23 November and not 29 November and was paid an additional week in lieu of notice, rather than the being advised that she was not dismissed until 29 November and told she was not required to work out a notice period. This effectively means Ms Martin was dismissed without prior consultation or warning.

[18] Ms Martin said in her oral evidence that she saw the job that she believed was her job of Assistant Property Manager advertised on Seek on 2 January 2019. Ms Martin produced an email which she said she sent to Bec Lawson and Renee Jackson on 2 January 2019 about the job she had seen advertised on Seek and said as follows:

“Hello,

Hope we are doing well. I am curious as to if I can have my job back please?

Kind regards

Dominique Martin”

[19] Ms Martin received an email response from Bec Lawson which reads as follows:

“Hi Dom,

I hope you’re well

Unfortunately this position was filled before Christmas.

Good luck with your search

Kind Regards”

[20] Ms Martin said that the Respondent is saying that her dismissal was because there has been a significant loss of management rights; however she submitted that Ms Victoria Harch had already handed in her resignation in October 2018. Ms Martin relied on a series of text messages she had exchanged with Ms Harch to infer that Ms Harch had resigned in October. Ms Harch did not give evidence.

[21] The Respondent said in its Form F3 response that whilst Ms Martin said that she saw her job advertised, this is not true. The Respondent said that another of the Assistant Property Managers, Ms Harch, had resigned from her position on 17 December 2018 with effect from 24 December 2018, not long after the redundancy of Ms Martin in November, in order to move interstate with her partner who was relocated with his work in the army. The Respondent said that it was at this stage that they needed to employ another Assistant Property Manager.

[22] The Respondent said that while it did not know the exact date that it placed the advertisement on Seek, Ms Harch resigned on 24 December 2018, more than 21 days after the termination of Ms Martin. An invoice was provided by the Respondent from Seek for a job advertisement dated 17 December 2019, which corresponds with an email provided to the Commission by the Respondent also of 17 December from Bec Lawson to Mr Warren Lovell seeking approval to advertise for an Assistant Property Manager position at Ningi where Ms Martin had worked.

[23] The Respondent said in its form F3 response that this was a genuine redundancy. It said the company lost significant numbers of managements (of property) and the number of property management staff required to manage these properties decreased. The Form F3 said the decision was made that Ms Martin’s position would be the one to go and the role was not replaced. The Respondent said that the remaining property managers in the other offices absorbed the work previously done by Ms Martin.

[24] In written submissions filed by the Respondent it submitted that at the time Ms Martin was employed by the Respondent at their Ningi Office the agency managed 360 properties with one Senior Property Manager, Ms Martin as Assistant Property Manager, and a leasing agent shared between the Ningi Agency and the Aspley Agency.

[25] The written submissions went on to say that in November 2018 the company was forced to restructure as by November the agency had lost significant numbers of managements (at 30 November they were only managing 222 properties). It was submitted that this led to significantly lower revenue being received in the Ningi Agency of approximately $170,000 per year in management fees alone.

[26] The Respondent submitted it could not afford to continue to employ the same number of staff on such a reduced income figure and it was decided that Ms Martin’s position was to be made redundant.

[27] The Respondent submitted that it restructured the company by having an already employed Assistant Property Manager, Victoria Harch, based at Aspley take over the responsibility for both her pod at Aspley and also the properties at Ningi. The Respondent submitted at this stage Ms Harch moved locations and was based out of the Ningi office 3 to 4 days per week.

[28] The Respondent submitted that Ms Harch worked as the Assistant Property Manager across both agencies until 28 December 2018 when she moved interstate as her partner was employed in the army and was reassigned. The submission included that Ms Harch initially advised the Respondent’s Head of Property Management of this decision on 17 December 2018 and provided her official resignation on 24 December 2018.

[29] The Respondent submitted that Ms Harch’s resignation was the only reason that another Seek advertisement was posted and no extra staff were employed at that stage. The Respondent submitted that Ms Martin’s position was made redundant due to a company restructure and unfortunately the Respondent was required to find another Assistant Property Manager not long after Ms Martin’s redundancy due to circumstances outside of their control.

[30] Mr Voysey gave oral evidence that was consistent with the Respondent’s written submissions. He said in his oral evidence whilst he had seen the text messages provided to the Commission by Ms Martin that were exchanged between Ms Martin and Ms Harch, his evidence was that the first that management became aware of Ms Harch’s intention to resign was 17 December. Given Ms Harch did not give evidence, on balance I prefer Mr Voysey’s evidence concerning when management became aware of Ms Harch’s decision to resign.

[31] During his oral evidence Mr Voysey repeated the earlier submission that the decision had been made to split the role of Assistant Property Manager across Ningi and Aspley after the termination of Ms Martin and Ms Harch performed this role resulting in having Ningi having a Senior Property Manager, a part time Assistant Property Manager (instead of a full time Assistant Property Manager) and a leasing agent. Mr Voysey said this structure worked successfully.

[32] Mr Voysey said that several weeks after Ms Martin had left it did employ a new person and that person is based part time at Aspley and part time at Ningi, which effectively replaces the role Ms Harch had taken on after the restructure. Mr Voysey said this was still the structure in place.

[33] Mr Voysey also gave evidence that in addition to the Ningi and Aspley agencies, there are two other agencies at New Farm and Oxley within the group that the Respondent is part of, and there were no other positions that Ms Martin could have been redeployed to at the time of her dismissal within the Group.

Extension of Time

[34] I am satisfied on the basis of evidence before me that at the time of her dismissal on 23 November 2018 the Respondent no longer required Ms Martin’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise. As stated by the Respondent, the role formerly performed by Ms Martin as Assistant Property Manager had been absorbed and the work was redistributed in order to save labour costs.

[35] On that basis the reason for the delay in filing the application, that being that Ms Martin had believed that her job still existed, has not been made out on the facts, however as conceded by the Respondent the timing of Ms Martin’s termination preceded by only a matter of weeks the subsequent resignation of Ms Harch, and the advertising of a role on Seek which bore the same job title and location as the role Ms Martin had been filling just prior to the Seek advertisement. Further when Ms Martin contacted her former employer on 2 January 2019 and queried the advertisement she was simply told by return email the job had been filled before Christmas.

[36] In the circumstances it is understandable that Ms Martin suspected the reasons for her termination at the time, despite the evidence subsequently showing the job she had been performing was no longer required. In all of the circumstances I have decided to treat s.394(3)(a) as neutral for the purposes of deciding whether to extend time as there are factors that weigh both for and against doing so regarding this particular criteria.

[37] Ms Martin became aware of the termination on 23 November 2018. Given the application was not filed until 7 January 2019 making it some 24 days out of time that tells against extending time.

[38] Ms Martin first became aware of the Seek advertisement on Wednesday 2 January 2019, however did not file an application for unfair dismissal for a further 5 days when she filed the application on 7 January 2019. Ms Martin gave evidence that she used this time to research what rights she had in the circumstances. The delay in filing was not so lengthy that it caused a significant level of prejudice to the employer. I will treat s.394(d) as a neutral consideration.

[39] The evidence has shown that the role was gone and on that basis the Respondent had satisfied s.389(1)(a), however the evidence has also disclosed that the Respondent failed to consult with Ms Martin about her termination.

[40] It was common ground that the Real Estate Industry Award 2010 applied to the employment of Ms Martin. Clause 8.1 of the Award reads as follows:

“8.1 Consultation regarding major workplace change

(a) Employer to notify

(i) Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must notify the employees who may be affected by the proposed changes and their representatives, if any.

(ii) Significant effects include termination of employment; major changes in the composition, operation or size of the employer’s workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations; and the restructuring of jobs. Provided that where this award makes provision for alteration of any of these matters an alteration is deemed not to have significant effect.

(b) Employer to discuss change

(i) The employer must discuss with the employees affected and their representatives, if any, the introduction of the changes referred to in clause 8.1(a), the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees and must give prompt consideration to matters raised by the employees and/or their representatives in relation to the changes.

(ii) The discussions must commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in clause 8.1(a).

(iii) For the purposes of such discussion, the employer must provide in writing to the employees concerned and their representatives, if any, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees provided that no employer is required to disclose confidential information the disclosure of which would be contrary to the employer’s interests.”

[41] By hearing evidence concerning the extension of time and redundancy jurisdictional issues at the same time, it is apparent from the evidence that the Respondent failed to comply with its obligations under s.389(1)(b) to consult about the redundancy given the manner in which Ms Martin’s termination was communicated and no discussions occurring about the changes. Ms Martin was denied an opportunity to mitigate the effects of the termination. Ms Martin was given no opportunity to raise any matters in relation to the decision. On the basis of the evidence before the Commission s.394(3)(e) tells in favour of extending time. There is no evidence in relation to s.394(3)(f) before the Commission and I will regard it as a neutral matter.

[42] Having weighed each of the matters under s.394(3) I have decided that there are exceptional circumstances in this matter warranting the granting of an extension of time.

Genuine Redundancy

[43] For reasons already discussed the Respondent has satisfied s.389(1)(a) and s.389(2) but failed to satisfy s.389(1)(b). On that basis this is not a case of genuine redundancy under s.389 but only because the Respondent did not consult in accordance with its obligation under the Award.

Harsh Unjust or Unreasonable

[44] In deciding whether the dismissal of Ms Martin was harsh, unjust or unreasonable I must consider the matters in s.387 of the FW Act.

Valid reason (s.387(a))

[45] The reasons for the dismissal of Ms Martin by the Respondent were not related to her capacity or conduct (including its effect on the safety and welfare of other employees). In the circumstances of this case it is a neutral matter with respect to consideration as to whether Ms Martin’s dismissal was harsh, unjust or unreasonable.

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

[46] The matters in s.387(b) and (c) of the FW Act deal with whether there was procedural fairness in respect of a reason for dismissal related to Ms Martin’s capacity or conduct. Given the reasons for her dismissal, I regard them as neutral with respect to whether Ms Martin’s dismissal was harsh, unjust or unreasonable.

Support person (s.387(d))

[47] I also regard s.387(d) as a neutral matter with respect to whether Ms Martin’s dismissal was harsh, unjust or unreasonable.

Unsatisfactory performance (s.387(e))

[48] Ms Martin’s dismissal did not relate to unsatisfactory performance, so again this is a neutral matter with respect to whether Ms Martin’s dismissal was harsh, unjust or unreasonable.

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

[49] The Respondent had some 21 employees in the group. The size of the enterprise probably did have a detrimental impact on the procedures the Respondent followed in effecting Ms Martin’s dismissal. The Respondent did not appear to have a dedicated human resource manager. This appears to favour the Respondent’s case.

Other matters (s.387(h))

[50] There was a sound, defensible and well-founded reason for Ms Martin’s dismissal, being that the Respondent no longer required her job to be performed by anyone because of changes in the operational requirements of its enterprise and it was not reasonable in all the circumstances to redeploy her.

[51] However the Respondent failed to consult with Ms Martin as required by the “consultation regarding major workplace change” clause in the modern award that applied to her employment and this was unreasonable supporting a conclusion that Ms Martin’s dismissal was harsh, unjust or unreasonable.

Conclusion on Harsh, Unjust or Unreasonable

[52] Taking into account the matters referred to above, Ms Martin’s dismissal by the Respondent was harsh, unjust or unreasonable because the failure to consult was unreasonable.

Remedy

[53] Ms Martin stated in her application that she sought compensation. Ms Martin indicated that she had obtained other employment.

[54] I am satisfied reinstatement is not appropriate. An order for the payment of compensation is appropriate in all the circumstances of the case. No substantial evidence or submissions were filed in regard to remedy. After the conclusion of the determinative conference email correspondence was sent to the parties inviting further submissions in relation to the criteria in s.392. Ms Martin filed further material but it did not pertain to remedy and appeared to be related to the redundancy issue. I have considered the material but do not believe that it adds anything that would warrant consideration of inviting further submissions or evidence or reopening the matter. The Respondent did not file any further material.

[55] The criteria relevant to the deciding of the amount of compensation are set out in s.392(2).

Remuneration that would have been received (s.392(2)(c))

[56] I have concluded that the remuneration Ms Martin would have received, or would have been likely to receive, if she had not been dismissed would have been another one weeks’ remuneration. One week is the period it would have taken for the Respondent to comply with its obligations in the relevant modern award to consult with Ms Martin about the redundancy that led to his dismissal. Based on a payslip provided by Ms Martin she was paid a gross hourly rate of $22.77 and a motor vehicle allowance of $3.85 per hour. Based on a 38 hour week this amounts to $1,011.56 gross. Ms Martin should also receive the equivalent of 9.5% superannuation contribution on that amount.

Remuneration earned (s.392(2)(e))

[57] Ms Martin indicated she had been unemployed for some time following her termination. I will not make any deduction on account of other remuneration earned since termination because it is not apparent that other remuneration was earned in the week following her dismissal.

Income reasonably likely to be earned (s.392(2)(f))

[58] I will not deduct an amount of income reasonably likely to be so earned by Ms Martin during the period between the making of an order for compensation and the actual compensation as the week following her termination does not extend to the period referred to in s.392(2)(f).

Other matters (s.392(2)(g))

[59] There are no other matters that are relevant to take into account in the determination of an amount of compensation in lieu of reinstatement for Ms Martin apart from those in ss.392(2)(a), (b) and (d), s.392(3) and s.395(5) of the FW Act.

Viability (s.392(2)(a))

[60] There is no evidence that an order for the payment of an additional one week’s pay gross plus 9.5% superannuation would affect the viability of the enterprise.

Length of service (s.392(2)(b))

[61] I do not intend to further reduce the amount on the basis of the reasonably brief period of service.

Mitigation efforts (s.392(2)(d))

[62] I accept that Ms Martin made efforts to mitigate her loss by seeking other employment and has now been successful in gaining other employment.

Misconduct (s.392(3))

[63] Misconduct did not contribute to the decision to dismiss Ms Martin. I will not reduce the compensation amount on account of misconduct.

Compensation cap (s.392(5))

[64] The amount of one week is less than the compensation cap in s.392(5) of the FW Act.

Conclusion on remedy

[65] An order for the payment of compensation of $1,011.56 gross plus 9.5% superannuation, less taxation as required by law, by TRNF (Pty) Ltd to Ms Martin in lieu of reinstatement is appropriate in all the circumstances of the case. An order to this effect will be issued separately and concurrently with this decision [PR710670].

COMMISSIONER

Appearances:

D. Martin appeared in person.

T. Voysey for the Respondent.

Hearing details:

2019.

Brisbane:

8 July

Final written submissions:

12 July 2019.

Printed by authority of the Commonwealth Government Printer

<PR710669>