Fair Work Act 2009
s.394—Unfair dismissal

Tebikenibeu Low
v
Menzies Property Services Pty Ltd
(U2014/11250)

Application for relief from unfair dismissal - genuine redundancy.

[1] This decision reproduces in edited form the decision and reasons which were stated on transcript at the conclusion of the conference conducted in relation to this matter on 4 November 2014.

[2] Mr Tebikenibeu Low has filed an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) in respect of the termination of his employment with Menzies Property Services Pty Ltd (Menzies), part of the Menzies Group of Companies. Section 396 of the Act requires me to determine four specified matters before the merits of the application may be considered.

[3] In relation to the first three of those matters, there was no dispute, and I find that:

(a) Mr Low’s application was made within the 21-day period required by s.394(2)(a).

(b) Mr Low was a person “protected from unfair dismissal” within the meaning of that expression in s.382 at the time of his dismissal by Menzies.

(c) Menzies was not a “small business employer” within the meaning of that expression in s.23 of the Act, and accordingly the issue of consistency with the Small Business Fair Dismissal Code does not arise.

[4] The fourth matter, about which there was a dispute, was “whether the dismissal was a case of genuine redundancy” (s.396(d)). Menzies contended that its dismissal of Mr Low was a case of genuine redundancy, but Mr Low contested this.

[5] Section 389 defines when a dismissal is a case of genuine redundancy. The definition has three elements:

(1) 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.

(2) The employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(3) The person’s dismissal will not have been a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise or of an associated entity of the employer.

[6] In this case, neither party has suggested that any modern award or enterprise agreement applied to Mr Low’s employment. I cannot myself identify any applicable modern award or enterprise agreement. Accordingly, the second of the three elements concerning consultation does not require consideration. I will therefore determine whether the other two elements of the definition are satisfied on the evidence.

[7] The facts of this matter, about which there was little dispute, were as follows. Mr Low was employed by Menzies in a Workplace Injury and Return to Work Coordinator position on 14 October 2013. There were two of these positions in the Menzies enterprise, the other being filled by Ms Jacqueline Mathieson. In about July 2014, Menzies conducted a review of its active workers compensation claims. The review concluded that the caseload (consisting of the number of active and open claims) did not justify two positions. External benchmarks suggested that a workers’ compensation claims case manager should be able to manage approximately 80 claims, whereas the total of claims open at the time of the review that were being handled by the two positions was only 63. A decision was therefore made by the business to make one of the two positions redundant.

[8] Menzies’ Chief Operating Officer, Mr Michael Allan, and its National Safety Manager, Mr David Borg, then engaged in a selection process to determine which of the two position holders should be chosen for redundancy. In this selection process they took into account overall experience in claims management and return to work coordination, the suitability of previous experience, the length of employment with Menzies, any relevant formal qualifications held or training undertaken, and overall performance including any disciplinary action. The result of this process was that Mr Low was selected for redundancy. Mr Allan and Mr Borg then attempted to identify any alternative position which Mr Low could fill in Menzies or any other company in the Menzies Group of Companies. The only vacant position was that of State Manager in Victoria. They concluded that Mr Low, by reason of his education, qualifications and experience, was not suitable for this high level role.

[9] On 22 July 2014, Mr Low was invited by email to attend a meeting with Mr Borg at about 4:30 pm. He was not advised of the purpose of the meeting. When he attended the meeting, Mr Allan was present. He was advised that it was likely that he would be made redundant, and would need to meet with Mr Borg at 9:00 am the following day. He was handed a letter bearing that day’s date, which stated (omitting formal parts):

“The purpose of this letter is to advise that the Company has undertaken a recent review of its operational requirements in light of various cost and profitability issues facing the business.

As a result of this review, the Company is considering a restructure which we anticipate will involve the position of RTW becoming no longer required by the company.

Unfortunately, a potential outcome of this restructure is that your position may be redundant. Your position has been selected taking into account the needs and objectives of the business.

We are giving consideration to whether there are any other available positions in the business or associated entities for which you are qualified and suited. At this stage, we have not been able to identify any available positions.

However, we would first like to consult with you regarding the potential redundancy including any measures that may be available to avert or mitigate adverse effects on you.

Therefore, I am advising you that a meeting will be held with you at 9am Wednesday 23rd July 2014 at the Kensington Office to discuss these matters.

Subject to the consultation process, your employment may be terminated by reason of redundancy.”

The letter was signed by Mr Borg.

[10] Mr Low met with Mr Borg the following day at 9:30 am as directed. He brought Ms Lucy Gildersleve with him as a witness.

[11] Mr Borg advised Mr Low that he has been made redundant effective immediately. Mr Low then asked Mr Borg a series of questions, which he answered. One of the questions was:

“I was told by you and Mike that all the positions that are currently available at Menzies Group of Companies, I am not suitable for, is that correct?”

Mr Borg responded:

“That’s correct.”

[12] Mr Low’s evidence was that he asked Mr Borg for a list of vacant positions, but was not provided with one. Mr Borg says this did not occur. However, because the evidence was that there were no vacant positions other than that of State Manager in Victoria, this contest in evidence is of little significance. The vacancy in the position of State Manager in Victoria appears to have been raised briefly, but was understandably not the subject of serious discussion.

[13] Later on 23 July 2014, Mr Low was provided by Menzies with a termination letter bearing that day’s date and signed by Mr Borg which stated (omitting formal parts):

“The purpose of this letter is to confirm the outcome of a recent review by Menzies International of its operational requirements, and what this means for you.

As a result of a recent review due to our current business operating environment, and as advised today in our meeting at 9am following consultation with you over potential redundancy the position of Return to Work Coordinator is no longer needed. Regrettably this means your employment will terminate.

This decision is not a reflection on your performance.

The company has attempted to find you an alternative position within the business and any associated entities in a similar capacity, however regrettably we have not been successful in finding an suitable alternate position.

Your employment will end immediately. Based on your length of service, your notice period is 4 weeks. Instead of receiving that notice, you will be paid in lieu of the notice period.

A final benefits statement will be forwarded to you with your final payslip detailing your total entitlements as a result of redundancy.”

[14] Mr Low submitted that his dismissal was not a case of genuine redundancy for two reasons:

(1) The work he previously performed was still being done by the other remaining Workplace Injury and Return to Work Coordinator, Ms Mathieson. This demonstrated, he submitted, that the employer had not decided that his job was no longer required to be performed by anyone.

(2) In deciding to make his position redundant, Menzies wrongly compared his job, and workload, to that of a Case Manager, when the role of a Case Manager was significantly different in nature and not fairly comparable.

I will deal with these submissions in turn.

[15] I reject the first submission. It is well established that the fact that the duties of a particular job or position which has been abolished have been re-allocated to another position or positions as part of an employer’s restructure does not alter the fact that the employer no longer requires that position or job to be performed by anyone. 1 Here, Menzies had two positions of Workplace Injury and Return to Work Coordinator. It has decided to abolish one of those positions, and have the holder of the remaining position perform all of the work previously done by both the position holders. That is a situation which falls squarely into s.389(1)(a).

[16] The second submission is not relevant to my consideration. It is not the function of the Commission, in determining whether a dismissal is a case of genuine redundancy, to form a view about the merits of the decision to make a position redundant. Whether it was objectively fair or justifiable to decide to abolish a position is beside the point, as long as the employer acted as it did because of changes in its operational requirements.

[17] I therefore find, for the purposes of s.389(1)(a), that Menzies no longer required Mr Low’s job to be performed by anyone because of changes in the operational requirements of its enterprise.

[18] In relation to s.389(2), there was no evidence to support the conclusion that it would have been reasonable in all the circumstances for Mr Low to be redeployed within Menzies’ enterprise or that of any associated entity.

[19] I find that Mr Low’s dismissal was a case of genuine redundancy. His application must therefore be dismissed, and I so order.

VICE PRESIDENT

Appearances:

T. Low and L. Gildersleve for the Applicant

M. Excell and D. Borg for the Respondent

Hearing details:

2014.

Sydney:

4 November

 1   Jones v Department of Energy and Minerals (1995) 60 IR 304 at [308]

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