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This decision relates to a redundancy which not only explored the role of redeployment, the petrol-chain owner talked of incompetence in its recruitment processes, but almost accused the parties as childish in their approach.
In terms of the job advertisements (which apparently were “incompetently” made), the facts put before the Deputy President in this matter that no positions had been filled since the applicant’s redundancy. Noting the applicant had applied for the position using his son’s name, which resulted in an offer of an interview.
The applicant in this matter was a sector manager for a medium-sized petrol/retail company who was made redundant as a result of drastic business downturn attributable to the COVID-19 lockdown. This resulted in the “Retail Board” deciding to restructure its retail operations having “grave concerns about what was happening and what lay ahead”. The respondent’s sales were down 50 percent and the profitability was even lower due to depressed petrol prices.
At the time of the applicant’s retrenchment, six Retail Store Specialist positions (including applicant’s) and the Victorian State Manager position plus two other position were made redundant.
The respondent submitted that the definition of genuine redundancy in is made out on the facts as it made a decision to restructure due to changed operational requirements, under which a number of positions were no longer required. It says that the applicant’s position, along with all of the “Area manager” positions in Victoria, and most nationally, were identified as being no longer required and consequently were made redundant.
In Christina Adams v Blamey Community Group, the Full Bench of the Commission stated:
“… it is necessary to state at the outset that consideration of whether the employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the enterprise does not involve a merits review of the employer’s decision to make the person’s job redundant. It is not to the point that it may have been open to the employer to make a different operational decision which may have allowed the relevant employee’s job to be retained. As was stated in Low v Menzies Property Services Pty Ltd:
‘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’.
“What s.389(1)(a) requires is for findings of fact to be made as to whether, firstly, the employer has made the decision that the relevant employee’s job is no longer required to be performed by anyone and, secondly, whether that decision was made because of changes in the operational requirements of the enterprise. If there was an ulterior motive for the decision – that is, if the real reason for the decision did not genuinely relate to any change in operational requirements, whatever the ostensible reason may have been – then it will not be possible to make the second finding of fact. However once these findings of fact are made, the element of the genuine redundancy definition contained in s.389(1)(a) is satisfied and no further inquiry is necessary.”
Lack of consultation
The applicant argued that he was not consulted in any way of his impending redundancy. The DP finding as the applicant’s role was one of a manager and was not covered by an award or enterprise agreement, the requirement to consult was not required.
Section 389(2) of the Act places a limitation on United Petroleum’s defence to the applicant’s unfair dismissal application that his dismissal was a case of genuine redundancy. It states that 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.
As was noted by the Full Bench in Ms Deborah Hallam v Sodexo Remote Sites Australia Pty Ltd (Hallam), s.389(2) places no obligation on an employer to redeploy, or to do everything possible to achieve a redeployment outcome. Further, as was noted in Hallam and other Full Bench authorities, this exception is applied at the time of dismissal.
In the context of this case, s.389(2) operates so that the dismissal of the applicant, if otherwise a case of genuine redundancy under s.389(1), will not be so if it would have been reasonable in all the circumstances for him to have been redeployed within the respondent’s enterprise, or within an enterprise of an associated entity of the respondent at the time of his dismissal.
When looking at the question of redeployment, the Full Bench of the Commission in Hallam considered whether there were any job vacancies either open or in contemplation at the time of the dismissal.
In Ulan Coal Mines Ltd v Honeysett, the Full Bench of Fair Work Australia stated that the exclusion in s.389(2) poses a hypothetical question which must be answered by reference to all of the relevant circumstances. The Full Bench in that case made the following observation:
“…if an employee is terminated for redundancy but subsequently employed within an entity related to the employer, that might be an indication that the employee could have been reemployed at the time of the termination. But this will not always be the case. Subsequent employment within an associated entity may occur because circumstances have materially altered since the termination. For example, vacancies may have arisen.”
In Technical and Further Education Commission TAFE NSW v L. Pykett (TAFE NSW), the Full Bench of the Commission, considered s.389(2) in the following way:
“…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.
“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.”
In this matter, the DP found that it was a difficult time for the respondent:
“There was no evidence before me that there were any open job vacancies at the time of [the applicant’s] dismissal…a large number of employees were either stood down completely or partially because their work ‘just needed to cease’…there were no opportunities for redeployment within [the respondent] or any of its related bodies corporate and that the role of Retail Site Reset Officer was not available to be filled at that time. Further…that in the period following [the applicant’s] termination until at least the date upon which the advertisement for a Retail Operations Specialist appeared on LinkedIn, no one had performed the tasks [the applicant] had performed…
“…once the COVID-19 restrictions were initially relaxed after [the applicant’s] termination, the sales performance of [the respondent] improved ‘dramatically’. [The respondent] said it was thought at that time that the business was ‘out of the woods’ and there was a need to hire more people…”
The DP finding that:
“As to [the job offer], I note this position was not what [the respondent] said that while he considered the letter was referring to the position of Retail Site Reset Officer, the letter was poorly written and he neither approved its form nor saw it before it was sent to [the applicant]. While I accept the 16 June 2020 letter demonstrates a lack of attention to detail and/or another breakdown in communication within [the respondent], I wonder whether [the respondent] would have made reference to the position of “Retail Stores Specialist” in the letter of 16 June 2020 had [the applicant] revealed to [the respondent] that he had applied for the position of “Retail Operations Specialist” in the name of his son when negotiations about his possible return commenced on 3 June 2020.
“Overall, I found [the applicant] to be a less compelling witness than [the respondent], whose evidence was direct and unshaken, and [the respondent], who was prepared to make unflattering concessions about functioning of [the respondent] management. [The applicant] initially tried to reconstruct the reason why he made his unfair dismissal application, had to be pressed on the sequencing of certain significant events, was less than forthright in having applied for a role in his son’s name and was cagey when it came to revealing details regarding his JobKeeper payments and workers’ compensation claim”.
The DP concluding:
“This is an unfortunate case. The COVID-19 pandemic has produced a volatile operating environment for [the respondent] and triggered the circumstances that lead to [the applicant’s dismissal. While he lodged his unfair dismissal application complaining of a deficient redundancy process, a failure to discuss and consider redeployment and alleging discriminatory and racist behaviour, together with targeted bullying from senior management, it is understandable that [the applicant] became sceptical about the basis for his dismissal after he had lodged his claim, when he became aware of the job advertisement on LinkedIn…However, for the reasons outlined above, I am nonetheless persuaded on the evidence before me that [the applicant’s] dismissal was a case of genuine redundancy within the meaning of s.389 of the Act”.
Observations by the DP
The DP, having found that the applicant was not able to argue an unfair dismissal because of the redundancy, went on to chide the parties for their behaviour:
“I will conclude by making this observation. [The applicant] could have again been working for [the respondent] but the parties squandered the opportunity they had to resolve their differences and start afresh through nothing other than their own short-sightedness and folly.
“In this regard, I note that as part of its offer to re-employ [the applicant], [the respondent] insisted on recovering the four weeks of redundancy pay it made to [the applicant] when he was dismissed, which totalled $6,153.85 gross. The offer of re-employment with this condition was made to Mr Lakhan approximately 7 weeks after his dismissal.
“I further note that Mr Lakhan had received a net payment of $14,169.79 when he was dismissed, inclusive of the four weeks of redundancy pay. Therefore, even if the $6,153.85 gross redundancy payment had been repaid, [the applicant] would still have retained $8,015.94 gross. [The applicant] also claimed a $3,000 gross payment through the JobKeeper scheme through his directorship of a company subsequent to his termination and this payment appears to have been received by that company on 16 June 2020. Therefore, even if he had repaid the $6,153.85 redundancy component, [the applicant] could have received and retained a gross sum of $11,015.94 [which] equates to just over 7 weeks’ gross wages. Therefore, if [the applicant] had agreed to the offer of re-employment at the time it was made, it would appear there would have been minimal, if any, wage loss incurred and [the applicant] would have had his previous commencement date recognised and been re-employed on his previous salary”.
“Unfortunately, instead of seeking to compromise on a reasonable basis at that time and resuming the employment relationship between them, both parties dug in, proceeded to retain lawyers and have consequently incurred costs in pursuing and defending this application”.