Kristine Ellen Staniland v Stegbar Pty Ltd [2017] FWC 4703

Kristine Ellen Staniland v Stegbar Pty Ltd [2017] FWC 4703 | Case summary | Zoe

[17]

[10] For purposes of s.389(1)(a) of the Act, it is necessary to determine whether Stegbar no longer required Mrs Staniland's job to be performed by anyone because of changes in the operational requirements of Stegbar's enterprise.

[11] A job involves "a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employer's organisation, to a particular employee".[1] Where there has been a reorganisation or redistribution of duties, the question is whether the employee has "any duties left to discharge".[2] If there is no longer any function or duty to be performed by that person, his or her job becomes redundant.[3] For example, an employer may redistribute all the tasks done by a particular person between several other employees, resulting in the person's job no longer existing.

[12] An employee's job may still be genuinely made redundant when there are aspects of the employee's duties still being performed by other employees.[4] The test is whether the job previously performed by the employee has survived the restructure or downsizing, not whether the duties have survived in some form.[5]

[13] The reference to "changes in the operational requirements of the employer's enterprise" in s.389(1)(a) of the Act includes circumstances where an employer restructures its business to improve efficiency, productivity, sales, revenue or some other aspect of performance. The operational circumstances of a business which may give rise to a redundancy will reside in the direct knowledge of the employer. The employer is required to provide direct evidence about the nature of the employee's job and why it is no longer required to be performed as a result of changes in the operational requirements of the employer's enterprise.

[14] There is no dispute between the parties and I am satisfied on the evidence that from the commencement of Mrs Staniland's employment with Stegbar until October 2016 there were three employees who worked in or from the Kotara showroom at any one time. Mrs Staniland worked as a casual Office Assistant/Administrator, 8:30am to 5:00pm on Monday, Wednesday and Friday. Mr Moodie worked as a full-time Sales Consultant in the Kotara showroom, 8:30am to 5:00pm from Monday to Friday. Prior to October 2016, Mr Stuart Baker was employed by Stegbar as a full-time Sales Representatives and he also had some managerial responsibilities. Mr Baker resigned from his employment with Stegbar in October 2016.

[15] Mr Mitchell gave evidence, which I accept, that the role of Sales Representative required Mr Baker to work principally on the road in the Newcastle region, attempting to procure sales of Stegbar's products. However, Mr Baker used the Kotara showroom as his base and he regularly worked in the Kotara showroom when preparing quotes for customers or if required to cover the absence of Mr Moodie.[6] Accordingly, while Mr Baker was not considered by Stegbar to be part of the staffing levels of the Kotara showroom he did work in and from the Kotara showroom.

[16] Mr Mitchell, in his capacity as the Sales Manager NSW of Stegbar, is responsible for implementing business strategies and sales plans into the sales teams and showrooms in New South Wales.[7] Mr Mitchell gave evidence, which I accept, that in 2016 Stegbar anticipated a downturn in the new home builder market in the next few years.[8] As a result, Stegbar made a strategic decision to focus on retail growth and trade growth from its showrooms. To achieve that objective, Stegbar needed to improve customer service in its showrooms.

[17] In light of this strategic position taken by Stegbar and Mr Baker's resignation, in October 2016 Mr Mitchell decided to make the following changes in an attempt to increase retail sales and improve business efficiency in the Kotara showroom:

(a) First, Mr Mitchell decided that the role of Sales Representative for the Newcastle region, which was left vacant following Mr Baker's resignation in October 2016, would not be filled. Mr Mitchell gave evidence, which I accept, that Mr Baker had struggled to achieve his sales targets when he was on the road attempting to sell Stegbar's products in the Newcastle region; and

(b) Secondly, Mr Mitchell decided that the Kotara showroom required two full-time employees working in the showroom, rather than one full time employee (Mr Moodie, Sales Consultant) and one casual employee working three days per week (Mrs Staniland, Office Assistant/Administrator). This decision was made in an attempt to improve customer service in the Kotara showroom.

[18] These changes meant that Stegbar did not need an employee working three days per week as an Office Assistant/Administrator in the Kotara showroom.

[19] In addition to the matters set out above, Mr Mitchell relies on the following evidence to support Stegbar's case that the changes in its operational requirements were the reason for its decision that it no longer required Mrs Staniland's job to be performed by anyone:

(a) Mr Mitchell gave evidence that he was aware that on the two days per week that Mrs Staniland did not work the Kotara showroom was struggling to answer incoming phone calls and assist walk-in customers. Mr Mitchell received an email from Mrs Staniland at 3:36pm on 24 October 2016, in which she advised that Mr Moodie was away and she was run off her feet, and as a result calls had been missed and customers had left the showroom. Mrs Staniland expressed the view that it was "not sustainable for 1 person" to be working on their own in the Kotara showroom. This supported Mr Mitchell's view that there was a need for two full-time employees in the Kotara showroom to answer incoming phone calls and assist walk-in customers;[9]

(b) at 5:40pm on 24 October 2016, Mr Mitchell sent an email to Mrs Staniland in which he invited Mrs Staniland to consider taking up a full-time position in the Kotara showroom, working 8.30am to 5:00pm, Monday to Friday. The email relevantly provided as follows:

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(l) prior to the restructure, Mrs Staniland's primary duties as Office Assistant/Administrator involved her providing administrative assistance, supporting the sales team, data entry, preparing quotes and orders, banking, answering and distributing phone calls, assisting customers with their enquiries, filing, ordering spare parts and stationary, managing the post and the petty cash and using software programs Titan and Salesforce.[19] Following the restructure, the duties Mrs Staniland previously performed have been distributed amongst Mr Moodie, Mr Smyth and, to a minor extent, Ms Jennie Graham, Sales Support Supervisor based in Lansvale, New South Wales, who if required can provide support in preparing quotes for the Sales Consultants based in the Kotara showroom. Since 31 May 2017, Stegbar does not have any person employed in the job of Office Assistant/Administrator at the Kotara showroom.[20]

[20] The evidence set out in the previous paragraph was not challenged in any serious way by Mrs Staniland. I accept those matters as truthful and reliable evidence.

[21] Mrs Staniland submits that the redundancy of her position was a sham fabricated by Stegbar for the purpose of terminating her employment.[21] In support of this submission, Mrs Staniland relies primarily on the following matters:

(a) Mrs Staniland contends that there was no change in the operational requirements of Stegbar's enterprise at the Kotara showroom. Mrs Staniland says that the minimum staffing required in any showroom is three employees, which had been the staffing level at the Kotara showroom throughout her employment up until October 2016.[22] Mrs Staniland says that Stegbar had no genuine need or strategic plan that required the restructure and that Stegbar simply needed to replace the position of Sales Representative left vacant by Mr Baker to return the staffing levels to three employees rather than make her role redundant. This decision would reduce the likelihood of employees working alone and free up more time for the Sales Consultants to follow up leads and quotations. Further, Mrs Staniland contends that the resources of the Kotara showroom were not stretched due to the volume of work coming in and Mr Mitchell did not know how busy the showroom was;[23]

(b) Mrs Staniland contends that Stegbar's offer of the full-time role was not genuine because Mr Mitchell knew that she could not work more than three days per week because she had commitments on the other two days of the week, including looking after her grandson;[24]

(c) Mrs Staniland had previously made a number of claims against Stegbar and contends that her employment was terminated to avoid payment of these alleged entitlements and because Mr Mitchell disliked her for raising these claims.[25] These claims related to:

• an alleged underpayment of wages by Stegbar that arose in circumstances where Mrs Staniland says she was being paid at the incorrect classification level. The underpayment claim had been raised by Mrs Staniland on a number of occasions since July 2015, including in emails to Mr Mitchell on 2 and 16 February 2017;[26]

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[22] I do not accept Ms Staniland's contention that the redundancy of her position was a sham or was not genuine, for the following reasons:

(a) I reject Mrs Staniland's submission that there was no change in the operational requirements of Stegbar's enterprise. I am satisfied that the change to Stegbar's operational requirements was the need to have two full-time employees working in the Kotara showroom, as a result of Stegbar's strategic goal to increase retail and trade sales growth by improving customer service in its showrooms. I am satisfied that Mr Mitchell's evidence that phone calls had been missed and customers were not being assisted on the two days per week on which Mrs Staniland did not work were genuine business reasons giving rise to him deciding that there was a change in the operational requirements of Stegbar's enterprise that required two full-time employees at the Kotara showroom. The matters raised by Mrs Staniland principally focus on taking issue with the business rationale of Stegbar's decision to restructure the staffing at the Kotara showroom rather than replacing the position of Sales Representative following Mr Baker's resignation.[28] Mr Mitchell gave evidence, which I accept, that there is no set structure or policy on the minimum staffing level of a showroom and that while he listened to and considered the opinions expressed by Mrs Staniland and Mr Baker regarding the structure of the Kotara showroom, he did not have to, and did not, agree with their suggestions; the decision was ultimately a business decision for him to make. I accept the logic and rationale of Mr Mitchell's decision to restructure the Kotara showroom such that there are two full-time employees working in the showroom, particularly in light of Stegbar's strategic decision to focus on retail and trade growth from its showrooms. Notwithstanding the fact that Stegbar ultimately decided to employ a second Sales Consultant to work in the Kotara showroom after Mrs Staniland rejected the offer for her to take up a full-time role in the Kotara showroom as an Office Assistant/Administrator, I accept Mr Mitchell's belief that Stegbar's goal to improve customer service in the Kotara showroom could have been achieved if Mrs Staniland had taken up the offer of full-time employment, even though she is not trained in sales and did not undertake selling work. Mr Mitchell gave evidence, which I accept, that other Stegbar showrooms work well from a customer service point of view with non-sales staff such as Mrs Staniland greeting customers and providing assistance to Sales Consultants;

(b) I reject Mrs Staniland's submission that the offer of the full-time role to her was not genuine because Mr Mitchell was aware that Mrs Staniland had commitments on the two days on which she did not work for Stegbar. Prior to October 2016, Mr Mitchell was aware that Mrs Staniland had commitments on the two days per week on which she did not work for Stegbar.[29] However, I accept Mr Mitchell's evidence that he was not aware when he offered Mrs Staniland the full-time job in October 2016 whether she still had those commitments or whether, if she did, she may have been willing to make changes to enable her to take up the full-time role. I also accept Mr Mitchell's evidence that he considered Mrs Staniland a good employee and that she had good customer relations skills and product knowledge. During cross-examination Mr Mitchell clarified that while two employees made comments to him during their exit interviews concerning difficulties they apparently had in working with Mrs Staniland, Mr Mitchell gave evidence, which I accept, that those comments did not alter his opinion that Mrs Staniland was a valuable employee. That Mr Mitchell repeatedly offered Mrs Staniland a full-time job in October and November 2016 supports the genuineness of his opinion in that regard; and

(c) I reject Mrs Staniland's submission that her job was made redundant because she had made a number of claims regarding her employment:

• in relation to her claim relating to underpayment of wages, this claim dated back to July 2015. There was a short period of time between the resignation of Mr Baker in October 2016 and the decision of Mr Mitchell to restructure the Kotara showroom. The claim regarding underpayment of wages was not raised in any significant way by Mrs Staniland between 17 December 2015 and February 2017. On 27 February 2017, Ms Taylor met with Mrs Staniland at the Kotara showroom to discuss the grievances raised by Mrs Staniland in her email to Mr Mitchell dated 16 February 2017, which included the underpayment claim.[30] I accept Mr Mitchell's denial that Mrs Staniland's claim for underpayment of wages did not form part of the reasons for her job being made redundant;

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[27] There is no dispute between the parties and I am satisfied on the evidence that Stegbar made a definite decision in October 2016 to introduce major changes in organisation or structure that were likely to have significant effects on employees. That decision was to have two full-time employees work from the Kotara showroom for the purpose of increasing retail sales and improving business efficiency.

[28] Pursuant to clause 8.1 of the Clerks Award, Stegbar was required to:

(a) notify Mrs Staniland of the definite decision to introduce such changes;

(b) as soon as practicable after the definite decision was made, discuss with Mrs Staniland and her representatives, if any, the introduction of the changes, the effects the changes were likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees;

(c) give prompt consideration to matters raised by Mrs Staniland and/or her representatives in relation to the changes; and

(d) provide in writing to Mrs Staniland and her 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.

[29] I am satisfied that, in accordance with cl.8.1(a) of the Clerks Award, Stegbar notified Mrs Staniland on 24 October 2016 of its definite decision to introduce changes. In particular, in the email from Mr Mitchell to Mrs Staniland sent on 24 October 2016 Mr Mitchell notified Mrs Staniland of Stegbar's definite decision that the business required her "three day position to become a full time five days per week to ensure we are fully staffed Monday-Fridays".

[30] On 3 November 2016, Mrs Staniland attending a meeting with Mr Mitchell, Mr Moodie and Ms Christie, during which she was advised by Mr Mitchell that the restructure would be introduced following a new full-time employee commencing at the Kotara showroom, the effect of the restructure was her job would be made redundant and her employment would be terminated if she did not accept the offer to take up the full-time role. In addition, it was made clear to Mrs Staniland that she could avert her employment being terminated if she decided to accept the full-time role that had been offered to her on 24, 27, 31 October 2016 and 3 November 2016. Further, on 15 December 2016, Mr Mitchell sent an email to Mrs Staniland providing her with an update to the effect that the introduction of the changes was envisaged to happen in about late-January or early-February 2017.

[31] The discussions on 3 November 2016 also provided Mrs Staniland with a response to the matters raised in her email sent at 4:50pm on 2 November 2016 to Mr Mitchell, raising a number of matters regarding the changes and her suggestions concerning alternate staffing structures, including replacing Mr Baker's role of Sales Representative or employing someone to work two days per week on Tuesdays and Thursdays when she was unable to work. Mr Mitchell responded to this email on 2 November 2016 at 5:07pm in which he also thanked Mrs Staniland for her input.

[32] In emails dated 24, 27, 31 October 2016 and 2 November 2016, Mr Mitchell provided Mrs Staniland with information regarding the proposed change of replacing her casual position with a full-time position at the Kotara showroom. In an email dated 16 February 2017, Ms Taylor confirmed with Mrs Staniland what she had been advised during the meeting on 3 November 2016 that the effect of the proposed changes would result in her casual position being made redundant when a person was employed into a full-time role.[32]

[33] Following the consultation that occurred in late-2016, Mr Mitchell gave evidence, which I accept, that due to the claims raised by Mrs Staniland in early-2017, as set out in paragraph [21(c)] above, he decided to delay the implementation of the restructure at the Kotara showroom.

[34] There was then further consultation with Mrs Staniland on 29 May 2017 during a meeting with Ms Taylor. Ms Jodi Halliwell, OHS - Coordinator, also attended as a witness for Stegbar and Mr Staniland attended as a support person for Mrs Staniland. Ms Taylor gave evidence, which I accept, that during the meeting she advised Mrs Staniland that her position would be made redundant and provided Mrs Staniland with a list of current positions available within the JELD-WEN group of companies. Ms Taylor asked Mrs Staniland whether she had any questions, to which Mrs Staniland replied "no". Ms Taylor then advised Mrs Staniland that she had some time to review the list of available positions and consider any further questions she may have. A further meeting was scheduled on 31 May 2017.[33]

[35] On 31 May 2017, Mrs Staniland attended a further meeting with Ms Taylor, Ms Halliwell and Mr Staniland.[34] Ms Taylor gave evidence, which I accept, that during the meeting Mrs Staniland did not raise any new matters. Mrs Staniland informed Ms Taylor that she was not interested in any of the jobs on the list of vacant jobs given to her on 29 May 2017. Ms Taylor then advised Mrs Staniland that her job of casual Office Assistant/Administrator was redundant and as a result her employment would be terminated.[35] I accept Ms Taylor's evidence that she did not have a termination letter prepared prior to the meeting on 31 May 2017 because she did not know what matters would be raised by Mrs Staniland or what discussions would take place on that day in relation to the list of vacant positions or any other matter. At the meeting on 31 May 2017 Mrs Staniland insisted on receiving a redundancy letter, which Ms Taylor then prepared.

[36] Based on the facts and matters set out in paragraphs [29] to [35] above, I am satisfied that Stegbar complied with the obligations in the Clerks Award to consult with Mrs Staniland about the redundancy of her job.

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[37] For the purposes of section 389(2) of the Act, the Commission must consider 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 employee. There must be an appropriate evidentiary basis for such a finding.[36] The word "redeployed" in section 389(2) of the Act should be given its ordinary and natural meaning, which is to "transfer to another job, task or function".[37]

[38] If an employer wishes to rely on the "genuine redundancy" exclusion in section 389 of the Act, then it would ordinarily be expected to adduce evidence, on the question of redeployment, as to 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 employee. Such evidence would usually include the steps taken by the employer to identify other jobs, positions or work which could be performed by the dismissed employee.[38]

[39] Whether it would have been reasonable in all the circumstances for the person to be redeployed directs attention to the circumstances which pertained when the person was dismissed.[39] However, the circumstances leading up to the time the employee was dismissed may, in particular cases (such as where there has been a redeployment period for an employee prior to their dismissal), be relevant to a determination of whether it would have been reasonable in all the circumstances for the employee to have been redeployed.[40]

[40] In determining whether redeployment would have been reasonable a number of matters may be relevant, including:

(a) whether there exists a job or position or other work to which the employee can be redeployed;[41]

(b) the nature of any available position;[42]

(c) qualifications required to perform the job;[43]

(d) the employee's skills, qualifications and experience. The employee should have the skills and competence required to perform the role to the required standard either immediately or within a reasonable period of retraining;[44] and

(e) the location of the job in relation to the employee's residence and the remuneration which is offered.[45]

[41] Where an employer decides that, rather than fill a vacancy by redeploying an employee into a suitable job in its own enterprise, it will advertise the vacancy and require the employee to compete with other applicants, it might subsequently be found that the resulting dismissal is not a case of genuine redundancy.[46]

[42] It is important, however, to appreciate that, because there is a requirement to assess the reasonableness of redeployment "in all the circumstances", it is not possible to establish binding or decision rules concerning the application of section 389(2) of the Act in all cases; the circumstances of each particular case must be considered.[47]

[43] Ms Taylor gave evidence, which I accept, that at the time Mrs Staniland's job was made redundant she conducted a review of all available positions within the JELD-WEN group of companies in an attempt to identify any suitable positions to which Mrs Staniland could be redeployed. This involved Ms Taylor printing off a list of positions that were advertised on JELD-WEN's intranet as currently available within the JELD-WEN group of companies. Further, Ms Taylor made phone calls to the General Manager of Regency, Newcastle and the General Manager of Trend Windows, Newcastle to enquire whether there were any job opportunities coming up in their respective showrooms or branches that had not yet been published on JELD-WEN's intranet. Ms Taylor was advised by both General Managers that there were not. As a result, Ms Taylor formed the view that the list of available positions she printed from JELD-WEN's intranet was an accurate record of all the positions to which Mrs Staniland could be redeployed within the JELD-WEN group of companies.

[44] It is not disputed between the parties that during the consultation meeting on 29 May 2017 Ms Taylor gave Mrs Staniland a copy of the list of available positions within the JELD-WEN group of companies. Mrs Staniland did not ask Ms Taylor any questions regarding the list or any other redeployment opportunities during the meeting. At the next consultation meeting on 31 May 2017 Mrs Staniland advised Ms Taylor that she was not interested in any of the positions on the list provided to her on 29 May 2017.

[45] Mrs Staniland submits that Stegbar did not comply with its redeployment obligations under s.389(2) of the Act for the following reasons:

(a) the list of available positions did not include any administration positions or positions in Newcastle;

(b) it would have been reasonable for her to have worked remotely from home providing estimating duties for other showrooms; and

(c) it would have been reasonable for her to be redeployed to the Newcastle showrooms of Trend Windows or Regency.[48]

[46] I am satisfied that it would not have been reasonable in all the circumstances for Mrs Staniland to be redeployed within Stegbar's enterprise, or an enterprise of an associated entity of Stegbar, for the following reasons:

(a) I am satisfied that the list of available jobs provided to Mrs Staniland during the meeting on 29 May 2017 was an accurate record of all positions available at that time within the JELD-WEN group of companies. I am also satisfied that the companies within the JELD-WEN group of companies included all the associated entities of Stegbar. Mrs Staniland accepts that the available positions on the list given to her were not suitable to her, which is not surprising given the list did not include any administrative positions in the Newcastle region; and

(b) I am satisfied that Mrs Staniland did not raise with Stegbar the potential for her to work remotely from home undertaking estimating duties. Notwithstanding this, I accept Ms Taylor's evidence that if Mrs Staniland had made this request it would not, and could not reasonably, have been accepted by Stegbar because there was no business need to have an employee undertaking such work remotely from home. Stegbar needed two full-time employees working from the Kotara showroom.

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Judgment (91 paragraphs)

Kristine Ellen Staniland v Stegbar Pty Ltd [2017] FWC 4703 (14 September 2017)

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Legislation Cited (1)

Cases Cited (6)