1
Fair Work Act 2009
s.394—Unfair dismissal
Christina Adams
v
Blamey Community Group
(U2015/14144)
SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 2 AUGUST 2016
Application for relief from unfair dismissal - genuine redundancy - jurisdictional objection
upheld - application dismissed.
[1] Ms Christina Adams has applied under s.394 of the Fair Work Act 2009 (Cth) (the
Act) for an unfair dismissal remedy against her former employer, the Blamey Community
Group (the BCG).
The hearing
[2] This matter was heard on 19 July 2016. At the hearing, Ms Adams represented herself.
Her husband, Mr Adams, also appeared on her behalf. Ms Amber Simpson, current President
of the BCG, appeared on its behalf.
[3] Ms Adams tendered:
her jurisdictional submissions and witness statement filed 13 July 2016;1
her substantive submissions and witness statement dated 21 June 2016;2
a bundle of attachments to her substantive submissions;3
a bundle of attachments to her jurisdictional submissions;4
a record of a conversation between herself and Mr Barry Phelps, Secretary of the
BCG at the time of her dismissal, dated 29 October 2015;5
the BCG’s application for funding under the Department of Defence’s Family
Support Funding Program (FSFP) for the 2015-16 financial year;6
a witness statement of Mrs Carlye Newsome, vice-president of the BCG at the time
of Ms Adams’ dismissal, dated 20 June 2016;7
a statement by Mrs Newsome dated 22 October 2015, summarising discussions held
at the BCG’s premises (Blamey Community Centre) on 21 October 2015;8 and
a Facebook post dated 25 October 2015 by Mrs Jade Tinney, President of the BCG
at the time of Ms Adams’ dismissal, listing the then-newly-elected members of the
BCG’s management committee.9
[4] The BCG tendered:
[2016] FWC 4899 [Note: An appeal pursuant to s.604 (C2016/4990) was
lodged against this decision - refer to Full Bench decision dated 21 October
2016 [[2016] FWCFB 7202] for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2016FWCFB7202.htm
[2016] FWC 4899
2
a treasurer’s report from its committee meeting held on 26 October 2015;10
its outline of submissions with appendices;11
a bank statement showing the balance in one of its bank accounts as at the hearing
date (19 July 2016);12 and
a bank statement showing transactions for that bank account and another that the
BCG maintained, from 1 July 2015 to 31 December 2015 inclusive13.
[5] Ms Adams, Mrs Newsome, and Ms Simpson were all called to give evidence and were
all cross-examined.
Background
[6] The BCG is a not-for-profit community organisation that provides support to Defence
families in Wagga Wagga and the surrounding area. The organisation is largely dependent on
grants received from the Department of Defence’s Family Support Funding Program (FSFP).
The FSFP funds local community programs or projects, with a strong focus on supporting
Defence families and the Defence community. Applications are prioritised according to how
strongly they meet the selection criteria. Grants are generally provided on a single-year basis.
The Minister for Defence has overall responsibility for the FSFP. Decisions are made by the
Minister following advice and recommendations provided by the Family Support Advisory
Committee (FSAC).
[7] Ms Adams was employed as the coordinator of the Blamey Community Centre on a
casual basis. She commenced this position in the second half of 2014.
[8] On 24 October 2015, the then-President of BCG, Ms Jade Tinney, wrote to Ms Adams
advising her that her role at Blamey Community Centre was being terminated. Relevantly, the
letter provided:
‘As per our phone conversation on the 23 October 2015, the new executive committee
team of the Blamey Community Centre met to discuss the future direction of the
business and whether at this point in time, a Co-Ordinator was required to continue
running the centre due to the level of financial difficulty the community centre is faced
with.
The result of this meeting was that it was agreed that there is no longer a viable
position for a paid Co-Ordinator to maintain running the day to day operation; and the
centre will be maintained by volunteers in a care-taker mode until clear strategic is
formed by the committee. As the co-ordination position is on a Casual employment
basis, and subject to sufficient funding, the current position has been made
redundant.’14
Consideration
[9] It is not in dispute that Ms Adams is a person protected from unfair dismissal.15 I am
satisfied that she is so protected.
[10] Section 385 of the Act provides:
‘385 What is an unfair dismissal
[2016] FWC 4899
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A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.’
[11] Section 385(a) of the Act is satisfied. It is not in dispute that Ms Adams was
dismissed.
[12] The BCG objected to Ms Adams’ application on jurisdictional grounds. Specifically, it
submitted that Ms Adams’ dismissal was a case of genuine redundancy and that s.385(d) of
the Act was therefore not satisfied.
[13] If the BCG’s submission is accepted, then I need not consider ss.385(b) or (c). The
application therefore turns on whether s385(d) has been satisfied.
[14] The meaning of ‘genuine redundancy’ is set out in s.389 of the Act:
‘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.’
[15] I will consider each element of the definition in turn.
No longer required because of changes in operational requirements: s.389(1)(a)
[16] It is clear from the evidence that at the time of Ms Adams’ dismissal, the BCG had
very little money in the bank, and its debts (including wages owed to Ms Adams) exceeded its
financial assets.16 While it had applied for funding for the co-ordinator position from the
FSFP,17 it had not yet received any money; indeed, its application had not yet been approved.
[2016] FWC 4899
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[17] The BCG held an annual general meeting (AGM) on 20 October 2015 to elect a new
committee. Immediately after the AGM, a committee meeting was held.18 Ms Adams was
present at both meetings. During the latter meeting, the newly-elected President, Ms Tinney,
flagged the difficulty of continuing to employ a co-ordinator in the organisation’s
unfavourable financial circumstances.
[18] A teleconference of certain committee members was held on 23 October 2015.
According to the minutes of the meeting:
‘It was decided by the meeting that with the present level of debt the BCG has that it is
necessary to reduce the overheads until such time as a viable strategic business plan is
discussed and implemented and the financial situation is improved. As the Co
Ordinator disagreed with continuing in the role in a voluntary capacity and due to the
period of time remaining before the Co Ordinator vacated the position that it is in the
best financial interest of the BCG to continue for the remainder of the year without a
paid Co Ordinator.’19
[19] This was followed by the President’s letter to Ms Adams terminating her employment.
Since Ms Adams’ dismissal, no one else has been employed as co-ordinator of the Blamey
Community Centre. To the extent that they are still performed, the co-ordinator’s duties are
now carried out by volunteers.
[20] In 2016, the BCG (now renamed Kapooka Neighbourhood House) engaged a Projects
Facilitator to help deliver a Work for the Dole project to improve the centre, including
upgrades to external areas, some internal upgrades and administrative improvements. I am
satisfied that this role is quite different from Ms Adams’ former position.
[21] There was some evidence, particularly that led from Mrs Newsome, that the BCG
could have reasonably expected that the FSFP funding was about to come through, and that
this funding could have been used, inter alia, to back pay Ms Adams, and to continue to
employ her. It is certainly arguable that the BCG could indeed have continued to employ Ms
Adams. The decision to dismiss her may or may not have been reasonable or sensible. But
that is not the test. I am satisfied that the decision to terminate Ms Adams was because the
BCG decided to change the way it operated. The BCG no longer required her job to be
performed by anyone because of changes in its operational requirements.
Compliance with a modern award to consult: s.389(1)(b)
[22] I am satisfied that Ms Adams was employed under the Social, Community, Home Care
and Disability Services Industry Award 2010.20 That award obliges an employer to consult an
employee when it is considering dismissing him or her due to major workplace change to
consult that employee.21
[23] Ms Adams was present at the AGM on 20 October 2015 and the subsequent meeting
where the financial situation of the BCG was discussed, and its consequences for the position
of Coordinator. She was provided with some options, including working temporarily on an
unpaid basis, or taking unpaid leave. She did not agree to these options as she clearly thought
(for understandable reasons) that the FSFP funding would shortly be available. Nevertheless I
am satisfied that the BCG met its obligations to consult Ms Adams.
[2016] FWC 4899
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Reasonable redeployment: s.389(2)
[24] Ms Adams was the BCG’s only employee before she was dismissed. There was no
other paid position into which she could have been redeployed.
Conclusion
[25] I can understand Ms Adams’ sense of grievance with her dismissal. The BCG had
applied for funding that could have been used to preserve her position, and, while the BCG
had not yet received that funding at the time of dismissal, she had reasonable grounds to
believe it would soon be forthcoming. However, the test is not whether the decision to
terminate her employment was a prudent one. It is whether that termination was a genuine
redundancy as defined by the Act. I am satisfied that it was. Accordingly, her application for
an unfair dismissal remedy must be dismissed.
SENIOR DEPUTY PRESIDENT
Appearances:
C Adams in person with D Adams.
A Simpson for Blamey Community Group.
Hearing details:
Wagga Wagga.
2016.
July 19.
Printed by authority of the Commonwealth Government Printer
Price code C, PR583138
1 Exhibit A1.
2 Exhibit A2.
3 Exhibit A3.
4 Exhibit A4.
5 Exhibit A5.
6 Exhibit A6.
FAIR OF THE FAIR WOR, WORK LOF THE JMMISSION THE SEAL
[2016] FWC 4899
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7 Exhibit A7.
8 Exhibit A8.
9 Exhibit A9.
10 Exhibit B1.
11 Exhibit B2.
12 Exhibit B3.
13 Exhibit B4.
14 Exhibit B2 appendix 2.
15 Fair Work Act 2009 (Cth) s.382.
16 PN457.
17 Exhibit A6.
18 PN190.
19 Exhibit B2 appendix 4.
20 MA000100.
21 Ibid cl 8.
