1
Fair Work Act 2009
s.394—Unfair dismissal
Tebikenibeu Low
v
Menzies Property Services Pty Ltd
(U2014/11250)
VICE PRESIDENT HATCHER SYDNEY, 6 NOVEMBER 2014
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:
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(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):
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“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):
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“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
1 Jones v Department of Energy and Minerals (1995) 60 IR 304 at [308]
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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
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Price code C, PR557379
OF THE FAIR WORK MISSION THE
