[2021] FWC 272

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Aimelyne Romeu
v
Quest Acquisitions No 2A Trust & Quest
(U2020/13588)

COMMISSIONER BISSETT

MELBOURNE, 22 JANUARY 2021

Application for an unfair dismissal remedy.

[1] Ms Aimelyne Romeu (Applicant) has made an application seeking a remedy for unfair dismissal in accordance with s.394 of the Fair Work Act 2009 (FW Act). Ms Romeu was employed by Quest Acquisitions No 2A Trust & Quest Acquisitions No 2b Trust (the Respondent) trading as Quest on Chapel as a Business Development Executive. Her employment was terminated by the Respondent with effect from 25 September 2020.

[2] The Respondent objects to the application on the grounds that the dismissal was a genuine redundancy. The application was subsequently listed to determine the objection and, if the dismissal was not a genuine redundancy, determine if the dismissal was unfair.

[3] The Applicant represented herself at the hearing of the application while the Respondent was represented by Ms Andrea Tuck, Human Resources Manager for the Respondent.

[4] The Applicant gave evidence on her own behalf. Ms Tuck and Mr Michael Sainsbury, Business Operations Manager, gave evidence for the Respondent.

LEGISLATIVE REQUIREMENTS

[5] Section 396 of the FW Act requires that certain matters be determined prior to a consideration of the merits of an application. Section 396 states:

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;

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

[6] The parties agreed that the application was made within the 21 day time period required by the FW Act; that the Applicant is protected from unfair dismissal and that the Small Business Fair Dismissal Code does not apply as the Respondent is not a small business.

[7] It therefore remains, in the first instance, to determine if the dismissal was a genuine redundancy.

[8] Whether a dismissal was a genuine redundancy requires a consideration of the requirements of s.389 of the FW Act. Section 389 of the FW Act states:

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.

[9] The Applicant says that she was covered by a modern award and the Respondent therefore had an obligation to consult her prior to making her redundant and that it failed to do so. The Respondent says the Applicant’s employment was not covered by a modern award and hence no such obligation to consult arose.

[10] The Applicant also said that she should have been guaranteed a job by the Respondent to return to following her parental leave. The Respondent says that, whilst it identified a position that might have been suitable for the Applicant, the Applicant did not apply for that position.

BACKGROUND AND EVIDENCE

[11] The Applicant is in Australia on a working visa. She commenced employment with the Respondent at Quest on Chapel on 8 October 2018 in the role of Business Development Executive. In May 2020 she advised the Respondent that she was pregnant. She had annual leave booked from 7 to 24 September 2020 and was to commence maternity leave (unpaid) on 25 September 2020. As the Applicant was on a working visa she was not eligible for the Government paid maternity leave scheme. Her leave was approved on 3 July 2020.

[12] Quest on Chapel is an apartment hotel business with 47 rooms. In addition to the Applicant it employed front of house and housekeeping staff and a Property Manager.

[13] Quest on Chapel was significantly affected by the COVID-19 pandemic and the restrictions put in place in Victoria by the Victorian Government in March 2020. From this time, Quest on Chapel’s performance (as measured by occupancy rates and other business measures) deteriorated. The cancellation of a major sporting event in Melbourne and restrictions on movement resulted in further cancellations and a decrease in occupancy rates. Quest on Chapel was not successful in gaining approval as part of the Government Hotels programme and sales opportunities substantially reduced. From March to July 2020 the full-time Property Manager, full-time Housekeeping Supervisor and the Applicant continued to work their pre-COVID hours but casual staff had their shifts reduced.

[14] In July 2020 the Victorian Government re-introduced stage-3 restrictions. A meeting was held of all Victorian Property Managers and Business Development Executives of the Respondent. At that meeting staff were advised that, due to border closures, further restructuring was required. Those present at the meeting were also advised that a review would be undertaken to assess the long-term viability of various properties including Quest on Chapel.

[15] In August 2020 the Victorian Government announced the introduction of Stage 4 restrictions. As a result, Quest on Chapel went into ‘hibernation’. The Applicant was subsequently advised on 5 August 2020 that she had been stood down.

[16] In late August 2020 Quest head office advised the Respondent that Quest on Chapel could be “de-branded”. The Respondent formed the view that, given the business could not survive with the support of Quest, it would be unable to survive as an independent business.

[17] On 17 September 2020 Ms Tuck attended a meeting with senior management from Quest Head Office and the Respondent where it was announced that a decision had been taken that Quest on Chapel (along with 4 other properties) was to close. It would cease trading on 15 October 2020. Ms Tuck said that discussions occurred at that meeting about redeployment opportunities for staff, including identifying opportunities with other franchisees in the Quest brand.

[18] As a result of the decision to close Quest on Chapel and because it was not, by this time, actively trading or selling accommodation, the Respondent says that Applicant’s job was no longer required to be done by anyone and was therefore redundant.

[19] The Applicant was invited by the Respondent to a meeting on 22 September 2020. She was invited to bring a support person with her. Ultimately that meeting was held by video. Present at the meeting were the Applicant, Mr Michael Sainsbury and Mr Daniel Wilkinson, the Quest on Chapel Property Manager. The Applicant was advised that the property was de-branding and would close and that the Applicant’s position would be made redundant. The Applicant was advised by Mr Sainsbury that there were no positions available to redeploy her into and her dismissal would take effect on 25 September 2020.

[20] Mr Sainsbury says that he advised the Applicant that he would look at any opportunities in the Quest network that may provide suitable employment for her. He identified positions in Ballarat and Wangaratta (which were not part of the Respondent’s business) but also advised that the senior manager responsible for these properties required someone to commence immediately. Mr Sainsbury says he provided details of these opportunities to the Applicant but she indicated she was not looking for a role immediately as she was about give birth.

[21] On termination of her employment the Applicant received payment in lieu of notice and redundancy pay.

[22] Ms Tuck says that she is aware of the consultation requirements of the Hospitality Industry (General) Award 2020 (the Award). She says the Award is clear that consultation is required once a definite decision is made and that consultation must occur with those employees covered by the Award. She says that the Applicant’s position of Business Development Executive is not covered by the classifications in the Award. Therefore, she says, there was no requirement to consult with the Applicant pursuant to the Award.

[23] The Applicant was, at the time of her redundancy, in Australia on a working visa. The Respondent was the Applicant’s sponsor for that visa and remaining on the visa was dependent on the Applicant having a sponsor.

[24] The Applicant says that the business closing was understandable, but she considers the way she was dismissed was unfair and unreasonable.

[25] As a result of the loss of her job the Applicant lost the sponsorship for her working visa and therefore needed to find another sponsor or another visa type to enable her to stay in Australia. Prior to being advised of the loss of her job the Applicant was confident of her position as she would remain on the working visa whilst on maternity leave and would return to work at Quest on Chapel following that leave.

[26] The Applicant says that she was entitled to be consulted pursuant to the Award as in force at the time of her redundancy and that this consultation did not occur. Alternatively, she submits that she should have been given greater warning of the possibility of redundancy so that she could start to consider her options.

[27] The Applicant says that, in considering her role and whether it is covered by the Award, it is necessary to look beyond the position title but rather to consider the tasks she was required to perform. She said that when this was done it was clear that she was, in her position with the Respondent, covered by the Award.

The Applicant’s role

[28] The Applicant was employed by the Respondent as a Business Development Executive. The Applicant reported to the Property Manager for Quest on Chapel.

[29] A copy of the position description (PD) for the Applicant’s role was provided by Ms Tuck in her evidence. The PD identifies the “position objective” as:

To generate and increase sales revenue for the property and the Quest Group by developing a portfolio of key accounts at the local area level, including representing the Quest Brand with the highest levels of professionalism and integrity, and in accordance with procedures in the Business Development Operations Manual, the Quest Code of Conduct, and other Quest policies and procedures.

[30] Mr Sainsbury gave evidence that a Business Development Executive’s role is to “build relationships with local businesses to develop business into the property” and that this is achieved by engagement with local businesses, by being part of the community, by discussing travel needs and building relationships. The Business Development Executive also liaises with Head Office and National Account Managers and engages with local representatives of businesses with national accounts to maintain relationships and provide information relevant to maintenance of the national account.

[31] Key responsibilities of the Business Development Executive as set out in the PD include:

• Development of local area knowledge: identifying target accounts in local area; attending local events to network and promote the Quest brand; participating in local business associations; etc.

• Undertaking sales planning: staying informed of property performance; undertaking of competitor analysis; identifying target accounts; development of sales strategies; establishing call cycles; coaching front office staff on lead generation and establish information sharing; etc.

• Undertaking sales calls: preparing and delivering presentations; making sales appointments; making sales calls on an agreed cycle; adopting appropriate sales techniques; etc.

• Reporting on sales activity.

• Undertake marketing: development of advertising and promotion ideas; assessing invitations to participate in local activities based on market focus; establishing and developing local relationships to enhance the Quest brand; developing and utilising networks to assist in implementing promotional activities; etc.

[32] The PD otherwise goes to two pages covering in some detail the requirements of the role in relation to local area knowledge, sales planning, sales calls, sales activity reporting, marketing and other duties.

[33] The coverage clause of the Award states:

4. Coverage

4.1 This industry award covers, to the exclusion of any other modern award:

(a) employers in the hospitality industry throughout Australia; and

(b) employees (with a classification defined in Schedule A—Classification Structure and Definitions) of employers mentioned in clause 4.1(a).

[34] The Respondent agrees that Quest on Chapel was part of the hospitality industry as defined in the Award.

[35] Schedule A—Classification Structure and Definitions of the Award contains a range of classifications including those in relation to guest services and administration. It also includes a classification relevant to managerial staff as follows:

A.2.9 Managerial staff (Hotels)

For the purpose of this classification:

hotels means hotels, resorts, casinos, taverns, wine saloons, wine and spirit merchants retailing to the general public and other retail licensed establishments in or in connection with accommodation, with the selling of drinks, preparing and serving food and drinks, cleaning and attending to the premises and all other associated services.

hotel manager means an employee (however designated) who:

• under the direction of senior management is required to manage and co-ordinate the activities of a relevant area or areas of the hotel; and

• directs staff to ensure they carry out their duties in the relevant area or areas of the hotel; and

• implements policies, procedures and operating systems for the hotel;

but excludes an employee who is employed to undertake the duties of senior management or is responsible for a significant area of the operations of one or more hotels. Indicative position titles for such an employee include:

• company secretary;

• chief accountant;

• personnel or human resources manager;

• financial controller;

• industrial relations manager;

• venue manager;

• general/hotel manager;

• executive assistant manager;

• regional manager; or

• a manager to whom any of those positions report or are responsible.

An employee appointed as a Manager must have completed an appropriate level of training in business management or have relevant industry experience, including in supervising employees in one or more areas of a hotel.

NOTE: In a General Hotel, this classification is commonly known as an assistant manager. In an Accommodation Hotel, this classification may include any of the following positions: duty manager; assistant food and beverage manager; assistant rooms division manager; assistant front office manager or equivalent position.

This additional classification does not apply to:

• a hotel manager who is an employee of a proprietary or private company (within the meaning of the Corporations Law) and who holds a sufficient number of shares to entitle them to voting control at general meetings of the company; or

• a hotel manager who is the senior partner of a partnership or who has at least 49% of that partnership; or

• a parent, spouse or de facto partner, son or daughter of a hotel manager excluded from the additional classification by clause A.2.9.

[36] The Applicant’s evidence is that the marketing function as set out in the PD and, in particular, the requirement to “Develop and utilise networks to assist in the implementation of promotional activities” is evidence that she was required to “implements policies, procedures and operating systems for the hotel” as specified in the Award.

[37] Further, the Applicant gave evidence that under sales planning in the PD she was required to “Coach Front Office Reception staff in lead generation and establish procedures for two way information sharing” and that this duty aligns to “under the direction of senior management is required to manage and co-ordinate the activities of a relevant area or areas of the hotel” in the Award classification description.

[38] The Respondent says that the Property Manager, to whom the Applicant reported, is captured by the Award classification on Managerial Staff but that the classification does not extend to the role performed by the Applicant.

[39] The Respondent submits that the applicant’s role is unique to the business structure, focusing on building relationships, new and existing account management. The position description shows that activities are driven in consultation with the manager or in accordance with sales policies and procedures already established. It says that the Applicant’s position had no direct reports and was not responsible for hotel operations.

WAS THE DISMISSAL A GENUINE REDUNDANCY?

[40] To determine if the dismissal was a genuine redundancy it is necessary to consider each of the matters in s.389(1) and (2) of the FW Act.

Was the Applicant’s job no longer required?

[41] There is no issue that the Applicant’s job was no longer required by the Respondent because of the changed operational requirements of the business.

[42] The business in which the Applicant worked closed following Victorian State Government response to COVID-19, in particular the stage 3 and stage 4 restrictions.

[43] I am therefore satisfied that the Applicant’s job was no longer required to be done by anyone because of operational changes in the employer’s enterprise.

Was the Applicant’s job covered by the Award?

[44] The approach taken when determining whether an employee’s role is covered by an Award at a relevant time is described as the principal purpose test. The principal purpose test requires an examination of the nature of the work undertaken and the circumstances in which the employee was employed to do the work in order to ascertain the principal purpose for which the person was employed and then assess whether the employee, in that employment, fell within the coverage provisions of the Award. It was expressed by a Full Bench of the Commission in Carpenter v Corona Manufacturing Pty Ltd 1 as follows:

In our view, in determining whether or not a particular award applies to identified employment, more is required than a mere quantitative assessment of the time spent in carrying out various duties. An examination must be made of the nature of the work and the circumstances in which the employee is employed to do the work with a view to ascertaining the principal purpose for which the employee is employed.

[45] To determine if the Applicant’s role is covered by the Award it is necessary to compare her job with those classifications contained in the Award. In undertaking this task the correct approach is to examine the nature of the work the Applicant was employed to do in order to ascertain the principal purpose for which she was employed and then assess whether the Applicant in that employment fell within the coverage provisions of the Award. The question of Award coverage is not determined by the title of position occupied but rather the duties performed. 2

[46] It has not been put by the Applicant or others that the PD does not reflect her role and responsibilities when she worked for the Respondent. For this reason I accept the PD is an accurate reflection of the work carried out by the Applicant and I will rely on it to determine the if the work she performed is covered by the Award.

[47] In considering the Applicant’s duties against the classification in the Award it is important to note that the Award classification description defines a hotel manager as one who:

• under the direction of senior management is required to manage and co-ordinate the activities of a relevant area or areas of the hotel; and

• directs staff to ensure they carry out their duties in the relevant area or areas of the hotel; and

• implements policies, procedures and operating systems for the hotel;

[emphasis added]

[48] That is, the hotel manager must perform each of these duties. It is only if a role meets the totality of this description that it then becomes necessary to determine if the role is caught up in any of the exclusions in the classification description.

[49] I have carefully considered the full range of duties as set out in the Applicant’s PD, some of which are set out above. In considering these I am not satisfied that the Applicant’s role fits the description in the Award of a hotel manager in that she does not, even on her own evidence as to her role, meet each of the parts of the description set out in para [47] above.

[50] The Applicant has suggested that two of the duties performed by her fit within the requirements to “manage and co-ordinate” or to “implement policies, procedures…” However, the evidence before me does not support a conclusion that she was at all responsible for directing staff as to duties. To the extent that she was required to “coach front office staff” with respect to recognising and reporting potential leads I do not consider that this equates to directing staff to ensure they carry out their duties in the relevant area of the hotel. The task of front desk staff in lead generation could not be seen as substantial part of their duties but rather as incidental – although important – to their duties.

[51] It is not apparent on the evidence before me – and it was not argued otherwise – that the Applicant carried out each of the three functions that are necessary to classify a position as “Managerial staff (Hotels)”.

[52] Further, that two tasks in an extensive PD of the Applicant might fall within some of the description of “Managerial staff (Hotels)” is not enough on which to base a conclusion that her position comes within the Award definition. The Applicant’s job description is extensive (going to two A4 pages). To find only two of an extensive range of duties could not satisfy that the totality of the role, on the basis of the principle purpose test, fits within the description.

[53] For these reasons I am not satisfied that the role or work of the Applicant falls within the position description of “Managerial staff (Hotels)” in the Award. It is not necessary to consider if the position is otherwise excluded by the definition. The position occupied by the Applicant is therefore not covered by the Award.

[54] Given the Applicant’s employment was not covered by the Award it is necessary to consider if it was covered by the Miscellaneous Award 2020. The Award’s coverage clause relevantly states:

4. Coverage

4.1 Subject to clauses 4.2, 4.3, 4.4 and 4.5 this award covers employers throughout Australia and their employees in the classifications listed in clause 15—Minimum rates who are not covered by any other modern award.

4.2 The award does not cover managerial employees and professional employees such as accountants and finance, marketing, legal, human resources, public relations and information technology specialists.

4.3 The award does not cover employees excluded from award coverage by the Act…

[55] The classification descriptions for the Miscellaneous Award are set out in Clause 12:

12. Classifications

12.1 A description of the classifications under this award is set out below.

(a) Level 1

An employee at this level has been employed for a period of less than 3 months and is not carrying out the duties of a level 3 or level 4 employee.

(b) Level 2

An employee at this level has been employed for at least 3 months and is not carrying out the duties of a level 3 or level 4 employee.

(c) Level 3

An employee at this level has a trade qualification or equivalent and is carrying out duties requiring such qualifications.

(d) Level 4

An employee at this level has advanced trade qualifications and is carrying out duties requiring such qualifications or is a sub-professional employee.

[56] The application of the Miscellaneous Award to this matter was not an issue canvassed during the hearing of the application. For this reason I sought further submissions from the parties in relation to its application.

[57] In those submissions the Applicant repeats her submissions in relation to the Award that I should consider her duties and not restrict myself to the title of the position she occupied.

[58] The Respondent says that it does not consider the Applicant’s employment comes within the coverage of the Miscellaneous Award.

[59] I have considered the submissions of the Applicant and Respondent. In considering the duties of the Applicant as set out in her position description (which she does not contest as to its accuracy) I am not satisfied that the Applicant role comes within the description of any of Level 1, 2, 3 or 4 of the Miscellaneous Award. It appears to me that the role of the Applicant with the Respondent was of a different character to that of an “advanced trade qualification” and I cannot conclude that the position was a “sub-professional”.

[60] For these reasons I do not consider the Applicant’s employment to be covered by the Miscellaneous Award.

[61] Given my findings that the Applicant’s employment was not covered by an Award (and there being no suggestion that it was covered by an enterprise agreement) there was no obligation to consult her about her redundancy pursuant to any Award.

Was it reasonable to redeploy the Applicant?

[62] At the time the Applicant’s employment was terminated the Respondent says it attempted to identify redeployment opportunities for her.

[63] A vacancy was identified at Quest Ballarat and Wangaratta which are not operated by the Respondent but of another franchisee operating under the Quest brand such that it is not an associated entity of the Respondent, so that no right to redeployment in relation to an associated entity arises. The Applicant took no steps to enquire further about the identified role.

[64] The Applicant said that given she was about to give birth and could not take up a position immediately the offer of was one “without a real option”.

[65] The Applicant did not advance that there were redeployment options available to her as contemplated by the FW Act or that it was reasonable that she be redeployed. Whilst it was agreed that the Applicant had indicated that she would move interstate she acknowledged that this was not realistic at the time her employment was terminated as she was about to give birth and, in any event, the borders were closed such that a move interstate was unlikely to be a reasonable option in the circumstances.

[66] In the circumstances – and given the lack of submissions or evidence to the contrary – I do not consider it would have been reasonable to redeploy the Applicant.

CONCLUSION

[67] For the reasons given above I am satisfied that the termination of the Applicant’s employment was a genuine redundancy. The objection of the Respondent to the application is therefore upheld.

[68] I acknowledge that the Applicant applied for maternity leave safe in the knowledge at that time, that she had a position to return to and that sponsorship of her working visa would continue. I also acknowledge the effect of the limited notice of the impending loss of her visa on the Applicant. The blame for this however does not rest with the Respondent. As has been often repeated these were unprecedented times. The Respondent was ultimately faced with difficult decisions in relation to the viability of Quest on Chapel and it was forced to make a decision, given the lack of business, to close. The Respondent is no more responsible or at fault for this than the Applicant. If the Applicant was not about to give birth or if the borders were not closed there were opportunities interstate with other franchisees that she might have taken. It was no-one’s “fault” but rather a convergence of circumstances.

[69] Section 385 of the FW Act states that a person has been unfairly dismissed if:

(a) the person was dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(d) the dismissal was not a case of genuine redundancy.

[70] Having found the dismissal was a genuine redundancy it is not possible to find the Applicant has been unfairly dismissed.

[71] The application for unfair dismissal is therefore dismissed. An order 3 to this effect will be issued in conjunction with this decision.