1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Kaye Wilson
v
Mackay Taxi Holdings Ltd T/A Mackay Whitsunday Taxis
(U2013/9954)
COMMISSIONER SIMPSON BRISBANE, 16 APRIL 2014
Application for relief from unfair dismissal - Full Bench remitted unaddressed threshold
matter under s.389(2) to member of Full Bench - whether Applicant could have been
retrained for new role - Retraining in circumstances placed unreasonable burden on a small
business - Application dismissed.
[1] This matter concerns an application under s.394 of the Fair Work Act 2009 (“the
Act”) by Ms Kay Wilson (“the Applicant”) who alleges that the termination of her
employment with Mackay Taxi Ltd T/A Mackay Whitsunday Taxis (“the Respondent”) was
unfair in accordance with the definition contained within s.385 of the Act.
[2] The application was filed on 28 May 2013. The matter at first instance was heard
before Commissioner Booth and a decision was issued 4 November 2013. 1 That decision
was the subject of an appeal and the decision of the Full Bench on 12 February 2014 was to
grant permission to appeal and uphold the appeal.2
[3] The Full Bench determined to remit to a member of the Full Bench the final
determination of an unaddressed threshold matter under s.389(2) of the Act concerning
whether it would have been reasonable in all of the circumstances for the Applicant to have
been redeployed. I issued directions for the filing of material on the outstanding matter and
listed the matter for hearing on 14 April 2014. At the hearing neither party sort to test by
cross examination any of the additional material filed.
[4] In accordance with the Full Bench decision in this matter the outstanding question is
whether the Applicant could have been redeployed into some other position within the
Respondent. Within that broader question the Full Bench raised the necessity of considering
the question of whether it would have been reasonable in the circumstances of this case for
the Respondent to have provided the necessary training to the Applicant in order to enable her
to assume the duties of the newly created qualified Book Keeper position.
[2014] FWC 2425
DECISION
E AUSTRALIA FairWork Commission
[2014] FWC 2425
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[5] In a recent Full Bench decision in Technical and Further Education Commission T/A
TAFE NSW v L. Pykett [2014] FWCFB 7143 (“Re: Pykett”) the basis on which the
Commission can reach a finding in relation to s.389(2) of the Act was considered. The Full
Bench found as follows:
[35] As we have mentioned, the use of the past tense in the expression ‘would have
been reasonable in all the circumstances for the person to be redeployed ...’ in section
389(2)(a) directs attention to the circumstances which pertained when the person was
dismissed. As noted in Honeysett, [T]’he exclusion poses a hypothetical question
which must be answered by reference to all of the relevant circumstances’. The
question is whether redeployment within the employer’s enterprise or an associated
entity would have been reasonable at the time of dismissal. In answering that question
the Full Bench in Honeysett observed that a number of matters are capable of being
relevant:
“They include the nature of any available position, the qualifications required
to perform the job, the employee’s skills, qualifications and experience, the
location of the job in relation to the employee’s residence and the remuneration
which is offered”.
[36] [...] For the purposes of s.389 (2) the Commission must find, on the balance of
probabilities, that there was a job or a position or other work within the employer’s
enterprise (or that of an associated entity) to which it would have been reasonable in
all the circumstances to redeploy the dismissed employee. There must also be an
appropriate evidentiary basis for such a finding. Such an interpretation is consistent
with the ordinary and natural meaning of the words in the subsection; the Explanatory
Memorandum and Full Bench authority. We acknowledge that the facts relevant to
such a finding will usually be peculiarly within the knowledge of the employer
respondent, not the dismissed employee. If an employer wishes to rely on the ‘genuine
redundancy’ exclusion then it would ordinarily be expected to adduce evidence as to
the following matters:
(i) that the employer no longer required the dismissed employee’s job to be
performed by anyone because of changes in the operational requirements of the
employer’s enterprise;
(ii) whether there was any obligation in an applicable modern award or
enterprise agreement to consult about the redundancy and whether the
employer complied with that obligation; and
(iii) whether there was a job or a position or other work within the employer’s
enterprise (or that of an associated entity) to which it would have been
reasonable in all the circumstances to redeploy the dismissed employer.
[37] The evidence in relation to (iii) would usually include canvassing the steps taken
by the employer to identify other work which could be performed by the dismissed
employee.
[2014] FWC 2425
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[38] As we have mentioned, we accept the respondent’s submissions as to the proper
construction of s.389(2). But that is not the end of the matter. The difficulty for the
respondent is that the Commissioner failed to make the requisite finding and for that
reason the appeal must be upheld [...].
[6] The Full Bench went on to consider the relevant findings of the decision under appeal
and went on to conclude:
[40] The Commissioner erroneously focussed on the inadequacy of the appellant’s
redeployment policy and failed to make a finding that there was a job, a position or
other work to which Ms Pykett could have been redeployed. Such a finding is a
necessary step in reaching the conclusion that it would have been reasonable in all the
circumstances for Ms Pykett to be redeployed within the appellant’s enterprise. The
failure to make such a finding is an error which warrants correction on appeal. [2014]
FWCFB 714. 4
Whether it would have been reasonable in all of the circumstances for the Applicant to have
been redeployed (other than to the new Bookkeeper position),
[7] The Respondent relies on the initial and subsequent letters to the Applicant which
included advice that should the Applicant’s position be made redundant, no other positions
were currently available into which the Applicant could be moved.
[8] The Respondent relies on this fact, and also the fact that the Applicant had an
opportunity to challenge the proposition that no other position was available but did not take
it, both during consultation via the preliminary letter, and subsequently via the subsequent
letter. This letter confirming the redundancy decision dated 24 April 2013 was submitted
during the proceedings. In the letter the Respondent advised the Applicant that her position
would be made redundant, and that consequently her employment would conclude. The
relevant section of the letter reads:
“Also in keeping with our earlier correspondence, we have given consideration to whether
another position is available which you may be moved into, and we have sought your input
on that issue. No suitable position is available, and on that basis your employment with us
must therefore conclude.”
[9] The Applicant has responded to this submission by challenging the proposition that
she was unable to perform the new Bookkeeping position. The Applicant has also made
submissions challenging the ability of the first person appointed to the new Bookkeeper role
to perform the new role to a higher standard than she could have. The Applicant also asserted
the new person would have required training to operate in the taxi industry, rendering that
person no more qualified than the Applicant.
[10] The Applicant also pointed to the fact that the first person engaged did not remain in
the role and a second person was employed, who also lacked experience in the taxi industry
and would have required training.
[2014] FWC 2425
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[11] The Applicant’s argument appears to be that despite the other two persons engaged to
perform the qualified bookkeeper role both holding qualifications that she did not, this would
have been off-set by her experience in the industry as compared to their in-experience. This
submission really goes to the matter which I will deal with below of whether it would have
been reasonable in all of the circumstances to have re-deployed the Applicant into the
qualified book keeper role despite her not holding the relevant qualification, and to have
supported her in obtaining that qualification instead of advertising and filling the role with a
qualified person. The Applicant has not identified another existing role.
[12] The Applicant has submitted that since her redundancy one female administration
person has been upgraded from part time to full-time, the office trainee who was partly
through her traineeship was kept on full time (at the end of her traineeship) and the company
also sponsored a foreign taxi driver on a working visa who works part time in the office.
[13] The Applicant asserts that such increases in these three non-existent and/or only part
time positions at the time of her dismissal could have been combined into one full time
position for her.
[14] The Applicant submitted as follows:
“Whilst the Respondent determines there was no vacancy at the time of my dismissal, it
certainly became obvious very shortly thereafter there was the need for additional
administrative staff within the organisation, hence the positions referred to above.”
[15] The difficulty with this submission is the requirement for the position to exist and to
be able to be identified at the time of termination as explained in Pykett. The Applicant’s
submission goes to what alternative positions the Respondent could have and did later create,
not what actually existed at the time of termination. There is no material to support a
conclusion that a position existed at the time of dismissal as required. 5
[16] Having considered the submissions and available material I am satisfied on balance
there was not another job or a position within the employer’s enterprise to which it would
have been reasonable in all the circumstances to redeploy the Applicant. This finding
excludes the new qualified bookkeeping role which I will consider separately below.
Whether it would have been reasonable in the circumstances for the Respondent to have been
redeployed to the new Bookkeeper position.
[17] The second aspect of the matter remitted from the Full Bench includes consideration
of whether it would have been reasonable for the Respondent to have provided training for the
Applicant to have assumed the newly created bookkeeping role, which the Full Bench
determined was a different role from that previously held by the Applicant. For completeness
however it is not just the training issue that would need to be considered in determining the
reasonableness of redeployment of the Applicant to the new bookkeeping role. As set out
above in Ulan 6 consideration can include the qualifications required to perform the job, the
employee’s skills, qualifications and experience, the location of the job in relation to the
employee’s residence and the remuneration which is offered.
[2014] FWC 2425
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[18] It is clear that the Respondent decided to employ a qualified bookkeeper, for example
a person with a Certificate IV which the Applicant did not possess.
[19] The Full Bench in Ulan7commented generally that redeployment may be possible
where the training requirement is reasonable:
[34] It may be appropriate to make some concluding remarks about the operation of s.389
(2). It is an essential part of the concept of redeployment under s.389(2)(a) that a redundant
employee be placed in another job in the employer’s enterprise as an alternative to
termination of employment. Of course the job must be suitable, in the sense that the
employee should have the skills and competence required to perform it to the required
standard either immediately or with a reasonable period of retraining.[...] (my emphasis
added)
[20] The Applicant contends that the Respondent has previously paid for the training of
other employees, and should have been prepared to pay for her to become qualified in the
duties of the new position. The Respondent accepted that it had provided various short
courses to various employees, including the Applicant.
[21] The Applicant said the majority of training provided by the Respondent in the past has
been for the taxi industry specific computer software installed on the company’s computers as
and where electronic changes were required within the system.
[22] According to the Applicant training afforded other members of staff by the
Respondent included one staff member being funded by the Respondent on several occasions
for significant training and travel to southern cities because her position was changed and
upgraded to Operations / Fleet Manager and Training Officer.
[23] The Applicant gave examples of other cases where the Respondent has changed
business contracts with Call Centre/Despatch Services companies, from Townsville Taxis to
Gold Coast Taxis and on each occasion considerable retraining of staff and major
administrative changes was instigated, and all staff were required to undertake varying
amounts and types of retraining especially regarding operation of new or different (incar) taxi
equipment. Such training was funded and provided either by the Respondent or these other
taxi companies. The Applicant also said the Respondent has always provided driver training
to all drivers in the district free of charge for some 60 plus drivers in the taxi district.
[24] The Applicant claimed to have had insufficient time to conduct her own investigations
into RPL (Recognition of Prior Learning) or funding options over a period of days or weeks.
The Applicant complained the Respondent insisted she conduct such an investigation in her
lunch break, which meant she had to approach previous employers for work histories and then
make discovery of possible RPL at TAFE in one half hour.
[25] In response to concerns raised about the cost of the training the Applicant referred to
the Department of Industry: “Investing in Experience – Skills Recognition & Training”
funding offered through TAFE colleges. The Applicant said amounts of up to $4400 per
employee could be provided to the employer under this program, a quite significant amount
the Respondent could have availed itself of for her study course.
[2014] FWC 2425
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[26] The Respondent maintained that to obtain the relevant qualifications required at a
minimum, twelve months of study. The Applicant refutes this. The Applicant claims that the
Respondent refused to consider that she may have been able to learn the new duties whilst
performing her other duties with the support of the company accountants.
[27] The Applicant said that as the TAFE course is done online and externally at the
students own pace there is no way to be specific in stating it would have taken 12 months.
The Applicant claimed that she had been advised by a commercial professional that given her
previous experience, with support she could have completed the course in 6 months or less.
The Applicant also claims that she may have achieved RPL.
[28] The Respondent submits there is a significant difference between short-term training
which is job-specific and conducted in-house, compared to a generic qualification requiring at
least twelve months to complete, and being conducted via a tertiary institution. Further it was
said that there is also a significant difference between training that is specifically related to the
employer’s business, as opposed to a person obtaining a qualification which is highly
transferrable.
[29] The Respondent has also submitted that given that these changes were being
contemplated in March and April 2013, had the Applicant been prepared to undertake the
necessary study, in all likelihood the study could not have commenced until the following
year, and would lead to the Applicant obtaining the qualification towards the end of the
following year, at best. In response the Applicant said this was conjecture as TAFE courses
are deemed Vocational Education and Training, are available internally, externally and online
whereby candidates can study at their own pace or study on campus on a full time basis.
[30] The Respondent said that it would not be reasonable to require it to hold off on a
necessary structural change, in the hope that the Applicant may become qualified some
considerable time later.
[31] The Respondent claimed that during the course of this matter, both parties have
indicated that they were not prepared to pay the cost of the course fees. On that basis alone
there was no prospect of the Applicant undertaking the required study, and therefore no
prospect that the Applicant would attain the required skills or knowledge for the new position.
The Applicant said she had never said she refused to fund the study, she had only requested
that the Respondent do so. The Respondent contends that it would not have been reasonable
in the circumstances to expect it to pay for the education of the Applicant.
[32] Having considered the material available I am satisfied that the circumstances of this
case do not align with what was contemplated by the Full Bench in Re:Ulan when it stated
“the employee should have the skills and competence required to perform it to the required
standard either immediately or with a reasonable period of retraining...”.
[33] Even on the Applicants own best case there is a reasonable prospect that the Applicant
will not hold the qualification attached to the new role for 6 months. I do not regard such a
length of time as reasonable in all of the circumstances. Further while there was speculation
that the Applicant may have been eligible for government funding to assist in meeting the
[2014] FWC 2425
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costs of her undertaking the Certificate IV training, the fact is no such application had been
made at the time of termination.
[34] I also accept the submission of the Respondent that there is a significant difference
between an employer paying for a short course that is specific to a particular job and paying
for a nominally 12 month Certificate IV TAFE Course which is transferrable.
[35] For the reasons set out above I am satisfied it was not unreasonable for the Respondent
to have advertised for the new position in order to engage an employee who held the
qualification the position required instead of redeploying the Applicant into the Bookkeeper
position. I have also included in my consideration the fact that the Respondent is a small
business employer. The kinds of accommodations the Applicant argues the Respondent
should have been prepared to make in order to redeploy the Applicant would have placed an
unreasonable burden on the Respondent being a small business. On the basis of my findings
above, and in light of the Full Bench decision there is no jurisdiction to consider the
application and it must be dismissed.
COMMISSIONER
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Price code {A}, PR549568
1 [2013] FWC 8634
2 [2014] FWCFB 1043
3 Technical and Further Education Commission T/A TAFE NSW v L. Pykett [2014] FWCFB 714
4 [2014] FWCFB 714
5 (Ulan Coal Mines Limited v Honeysett and others) [2010] FWAFB 7578 paragraph 28.
6 (Ulan Coal Mines Limited v Honeysett and others) [2010] FWAFB 7578
7 (Ulan Coal Mines Limited v Honeysett and others) [2010] FWAFB 7578
