[2012] FWA 2445 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Amnon Rosenfeld
v
United Petroleum Pty Ltd T/A United Petroleum
(U2011/13440)
COMMISSIONER RYAN |
MELBOURNE, 22 MARCH 2012 |
Application for unfair dismissal remedy - jurisdiction - genuine redundancy - not a genuine redundancy.
[1] An application was made by Mr Amnon Rosenfeld (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to his termination of employment from United Petroleum Pty Ltd (the Respondent).
[2] The Applicant was employed by the Respondent as a Leasing Manager from 20 December 2010 and his employment was terminated in writing on 3 November 2011, effective from close of business on that day. The letter of termination was in the following terms:
“Re: Notice of position to be made redundant.
As a result of operational changes within United Petroleum we hereby give you notice that your employment with United has been made redundant close of business on the 3rd November 2011.
The Company will satisfy your entitlements to notice and unused leave, as well as ensure the requisite superannuation contributions are made.
I remind you of your continuing obligations to keep confidential all information that is confidential to the Company and/or its clients. If you have any queries please contact me.
Sincerely,
Joel Toey
Human Resources
United Petroleum”
[3] The Applicant contends that his termination from employment was not a genuine redundancy. The Respondent contends that it was.
[4] The Applicant seeks a remedy for unfair dismissal.
[5] The application was listed for hearing on 5 March 2012 for both determination of the jurisdictional issue (genuine redundancy) and for determination of the merit of the application. However the hearing on 5 March 2012 was limited to dealing with the jurisdictional challenge raised by the Respondent that the dismissal was a case of a genuine redundancy.
Genuine Redundancy
[6] Section 389 defines “genuine redundancy”.
“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.”
[7] Where, as in the present matter, the employer asserts that a termination was a “genuine redundancy” then the employer must first establish that both of the criteria in s. 389(1) have been met. If both criteria in s.389(1) have been satisfied a dismissal may still not be a “genuine redundancy” if redeployment was reasonable in accordance with s.389(2).
[8] I have separately considered each of the two elements of s.389(1) of the Act.
Did United Petroleum P/L no longer require Mr Rosenfeld’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise?
[9] Evidence for the Respondent was given by Mr Joel Toey, Human Resources Manager for the Respondent and by Mr Anastasiou, formerly Head of Property for the Respondent.
[10] The evidence for the Respondent clearly discloses that the Respondent has undertaken a significant restructuring of its property section.
[11] What is clear from the evidence is that the job performed by the Applicant has at all times been required by the Respondent to be done by someone.
[12] The evidence of the Respondent was that it needed to employ a senior employee with skills which none of the existing employees had. As a result of the employment of the new senior employee 90% of the work performed by Mr Anastasiou was taken off him and all of the work performed by the Applicant was taken off him and given to Mr Anastasiou. The Applicant was dismissed as there was no work for him to perform. In early December 2011 Mr Anastasiou left his employment with the Respondent and the Respondent advertised a position for a new employee to perform the same job as had been performed by the Applicant. The Applicant was offered this new position which he declined as the remuneration package was different to the remuneration package the Applicant had been employed under.
[13] The Respondent submits that the taking work off the Applicant and giving it to Mr Anastasiou is consistent with the concept of redistribution of work as discussed in Ulan Coal Mines Ltd v Howarth [2010] FWAFB 3488 and the decision of Ryan J in Jones V Dept of Energy and Minerals 1 and thus meets the test for being a genuine redundancy.
[14] However in the present matter there was no redistribution of the Applicant’s job amongst other employees. Rather the entirety of the Applicant’s job was given to Mr Anasatasiou.
[15] If there was a genuine redundancy in relation to any employee of the Respondent it was most likely to be the case for Mr Anastasiou. The evidence of the Respondent makes clear that 90% of Mr Anastasiou’s job was given to the new more senior employee leaving only 10% of Mr Anastasiou’s original job to be done by him.
[16] Unfortunately for the Applicant the Respondent decide to take the entirety of the Applicant’s job and give it to Mr Anastasiou and when Mr Anastasiou left the entirety of the Applicant’s job was recreated as a separate position within the Respondents property unit.
[17] I note the decision of Hamberger SDP in Kekeris v A. Hartrodt Australia Pty Ltd [2010] FWA 674 and which was referred to by the Full Bench in Jones’s case in the following terms:
“18. ...Hamberger SDP considered whether a dismissal resulting from the restructure of a supervisory team was a case of genuine redundancy. As a result of the restructure, four supervisory team leader positions were replaced by three team leader positions. The Senior Deputy President said:
‘When one looks at the specific duties performed by the applicant prior to her termination they have much in common with those of two of the new positions in the new structure. The test is not however whether the duties survive. Paragraph 1548 of the explanatory memorandum makes clear that it can still be a ‘genuine redundancy’ where the duties of a previous job persist but are redistributed to other positions. The test is whether the job previously performed by the applicant still exists.’ (at par [27])”
[18] Applying the test “Whether the job previously performed by the applicant still exists?” to the facts in the present matter leads to the conclusion that the job previously performed by the Applicant still existed after the dismissal of the Applicant. It is clear and I so find that the Respondent continued to require the Applicant’s job to be performed by someone and that notwithstanding this the Respondent dismissed the Applicant and gave the entirety of his job to another employee.
[19] The Respondent has not met the first criteria for a genuine redundancy as set out in s.389(1)(a) of the Act.
Did a modern award apply to Rosenfeld’s employment?
[20] The Applicant contends that either or both the Clerks - Private Sector Award 2010 or the Real Estate Industry Award 2010 applied to the Applicant during his employment.
The Respondent contends that no award applied to the Applicant’s employment. The Respondent considered each of the following awards: Clerks - Private Sector Award 2010, Hydrocarbons Industry (Upstream) Award 2010, Oil Refining and Manufacturing Award 2010, Real Estate Industry Award 2010 and the Vehicle Manufacturing, Repair, Services and Retail Award 2010.
[21] In relation to the Real Estate Industry Award 2010 the Respondent’s contentions were as follows:
“Real Estate lndustry Award 2010
15. The coverage of this Award is expressed as follows:
4.1 This award covers employers in Australia engaged in the real estate industry in respect to their employees engaged in classifications in clause 14-Minimum weekly wages to the exclusion of any other modern award
16. It is a precondition for the coverage of this Award for the employer to be engaged in the real estate industry. The Respondent is not engaged in the real estate industry. It is engaged in the distribution and sale of petroleum products. There is obviously a need for the Respondent to manage its properties but that does not mean that the Respondent thereby becomes engaged in the real estate industry.”
[22] I do not agree with the Respondents submission in relation to the Real Estate Industry Award. As clause 4.7 of the Real Estate Industry Award makes clear it is possible for an employer to be covered by more than one modern award.
“4.7 Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.”
[23] The real estate industry is described in clause 3.1 of the Real Estate Industry Award in the following terms:
“real estate industry means the provisions of services associated with sales, acquisitions, leasing and/or management of residential, commercial, retail, industrial, recreational, hotel, retirement and any other leasehold or real property and/or businesses. Such services include:
real estate law means legislation enacted by a State or Territory government for the purposes of regulating the conduct of the real estate industry”
[24] The Respondent’s own evidence discloses that the Respondent has a dedicated property team of employees to manage the property business of the Respondent. The Respondent, at the request of the Tribunal, filed a copy of the staff profile of the property unit within the Respondents business as at the date of the Applicant’s dismissal. The chart with all names other than the Applicant’s removed is as follows:
[25] The very structure of the Respondent’s property unit satisfies me that the Respondent is an employer in the real estate industry. The Respondent is an employer within the real estate industry just as it is also an employer in the repair, services and retail part of the vehicle industry through its business of selling petroleum fuels and other retail items.
[26] Whilst the Applicant contends that his employment would have been covered by the classification of Property Management Supervisor as defined at item B.2.3 of Appendix B to the Real Estate Industry Award it is arguable if that is the correct classification. However I am satisfied that the evidence in this matter leads to the conclusion that the Applicant performed work which falls squarely within the classification of Property Management Representative as defined at item B.2.2 of Appendix B to the Real Estate Industry Award.
[27] The Respondent is an employer to whom the Real Estate Industry Award 2010 applied in relation to the employment of the Applicant.
Section 389(1)(b) and the obligation to consult
[28] The Respondent had an obligation to consult with the Applicant about the redundancy as required by clause 8 Consultation regarding major workplace change of the Real Estate Industry Award as follows:
“Consultation regarding major workplace change
Employer to notify
Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must notify the employees who may be affected by the proposed changes and their representatives, if any.
Significant effects include termination of employment; major changes in the composition, operation or size of the employer’s workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations; and the restructuring of jobs. Provided that where this award makes provision for alteration of any of these matters an alteration is deemed not to have significant effect.
Employer to discuss change
The employer must discuss with the employees affected and their representatives, if any, the introduction of the changes referred to in clause 0, the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees and must give prompt consideration to matters raised by the employees and/or their representatives in relation to the changes.
The discussions must commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in clause 0.
For the purposes of such discussion, the employer must provide in writing to the employees concerned and their representatives, if any, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees provided that no employer is required to disclose confidential information the disclosure of which would be contrary to the employer’s interests.”
[29] The evidence of the Respondent in this matter discloses that the Respondent did not meet the requirements of clause 8 of the Real Estate Industry Award before terminating the Applicant. Whilst this can be explained through the view the Respondent took as to the non application of the Real Estate Industry Award to the Applicant the result is nevertheless that the Respondent failed to comply with the award.
[30] As the Respondent did not comply with the obligation under the Real Estate Industry Award to consult with the Applicant about the redundancy then the Respondent has not met the second criteria for a genuine redundancy as set out in s.389(1)(b) of the Act.
[31] I find that the dismissal of the Applicant was not a genuine redundancy within the meaning of s.389(1) of the Act.
Future Proceedings
[32] At the hearing of this application on 5 March 2012 I advised the parties that if I decided that the dismissal was not a genuine redundancy then I would relist the matter at first instance for a telephone conference for the purposes of programming the hearing of the merits of the case. I will separate to this decision issue a Notice of Listing for a programming hearing which will be conducted by telephone.
COMMISSIONER
Appearances:
A. Rosenfeld on his own behalf
R. Millar, of Counsel, for United Petroleum Pty Ltd
Hearing details:
Melbourne
2012
March 5
1 [1994] IRCA 42 (20 September 1994)
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