Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - genuine redundancy - appropriate evidentiary basis for the Commission's findings - consultation obligations not met - dismissal was not a genuine redundancy - whether employer was a small business - jurisdictional objection dismissed - application to proceed to hearing on the merits.

• [1] On 5 September 2023 Ms Bowler made an application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) for a remedy, alleging that she had been unfairly dismissed from her employment with Trojan Wake Ski and Snow Pty Ltd. Ms Bowler seeks compensation.

• [2] On 16 August 2023 Ms Bowler was called into a meeting with the owner of the business, Mr Roy Newlan, and told that her position was redundant. Ms Bowler was paid two weeks' pay in lieu of notice.

• [3] Trojan Wake Ski and Snow argued that Ms Bowler's dismissal was a genuine redundancy. Trojan Wake Ski and Snow also argued that it was a small business employer is defined in section 23 of the Fair Work Act 2009 (Cth) (FW Act).

• [4] For the reasons that follow I find that Ms Bowler's dismissal was not a case of genuine redundancy and her application can continue.

• [5] The matter was listed for Hearing to receive evidence and submissions on the specific matters of whether Ms Bowler's dismissal was a genuine redundancy, and also whether Trojan Wake Ski and Snow was a small business employer.

• [6] Directions were made to prepare the matter for hearing. Trojan Wake Ski and Snow's adherence to the directions was problematic. It is not necessary to record in this decision the difficulties, suffice to say that I am satisfied that by the time of the hearing Trojan Wake Ski and Snow had a fair opportunity to prepare and present its case and, specifically, a fair opportunity to prepare and lead evidence in relation to the matters in issue. The Commission does not have to ensure that parties take the best advantage of these opportunities (see Galloway v Molina and Zhai [2021] FWCFB 5419 at [24], [2021] FWCFB 5419; (2021) 310 IR 151 at 157).

Evidence and submissions in the Respondent's case

• [7] From within a number of emails received on behalf of Trojan Wake Ski and Snow the Commission was able to assemble two written submissions on the matters in issue. The first email that I have taken to be a submission on behalf Trojan Wake Ski and Snow is as follows:

• [8] Trojan Wake Ski and Snow was then referred, for the second time, to the Fair Work Commission's Unfair Dismissal Benchbook.

• [9] The second email that I have taken to be a submission on behalf Trojan Wake Ski and Snow said:

"According to the Fair Work Commission's Unfair Dismissal Benchbook, a small business employer is defined as one who employs fewer than 15 individuals at any given time. This count includes employees from any associated entities of the employer. However, it is essential to note that casual employees are generally excluded from this count unless they have been employed on a consistent, systematic basis.

In the case of Trojan Wake Ski and Snow, while we do employ several casual employees, only our regularly-engaged casuals count towards our overall employee count. Our additional casual workers do not influence our tally of full-time or part-time staff.

Given this criterion, Trojan Wake Ski and Snow qualifies as a Small Business, exempting us from certain provisions in the Fair Work Act, such as the obligation to provide redundancy pay."

• [10] Mr Newland filed two statements in the matter and they are reproduced below. The first statement is as follows:

"I, Roy Newlan, am the Director of Trojan Wake Ski and Snow and make this statement in full awareness of its implications and with a clear intent to affirm its truthfulness.

I confirm that as of 31st August 2023, Trojan Wake Ski and Snow is and should be recognized as a small business.

As of the stated date, our company had less than the statutory number of full-time and part-time employees that would classify it as larger than a small business.

Our records, which are diligently maintained and available for verification if required, will attest to the fact that we did not exceed the aforementioned employee count threshold.

We recognize the importance of accurate representation in all business-related matters and take our responsibility in this regard very seriously.

I am prepared to provide any additional information, or answer any queries that might arise in relation to this statement.

I assert that the information provided in this statement is accurate and true to the best of my knowledge and belief."

• [11] Mr Newland's second statement is as follows:

"The decision to render the customer service position at Trojan redundant was not taken lightly and was a result of several compelling factors:

1. **Decline in Business Operations**: We have witnessed a notable drop in both sales and customer interactions. This diminished requirements for customer service personnel and consequently, has impacted the feasibility of maintaining the said position.

2. **Organizational Restructuring**: Our initial intention to unify the customer service functions across our two shops necessitated the creation of the role in question. However, after a thorough review and considering the operational dynamics, we have decided to revert to separate customer service structures for each shop, rendering the merged position superfluous.

3. **Operational Sufficiency Post-Redundancy**: Post the redundancy, we found our operations running efficiently without the need to replace the applicant. This further validated our decision, demonstrating that the role was no longer crucial to our daily operations.

4. **Revisiting Established Structures**: Prior to the applicant's tenure, our organizational structure was different and had been proven effective over time. Given the current business climate and internal assessments, it was deemed prudent to revert to this time-tested structure, thus eliminating the need for the newly created position.

I trust this provides a clearer insight into our rationale. It's crucial to emphasize that our decision was driven by genuine business needs and was in no way a reflection of the applicant's capabilities or performance."

• [12] In light of Mr Newlan's reference in his statement to being prepared to provide further information, Trojan Wake Ski and Snow was allowed a further short period of time to file any documents that it wanted to rely on as evidence in its case. No such documents were filed, in fact no original documents at all were filed on behalf of Trojan Wake Ski and Snow.

• [13] Mr Newlan did not attend the hearing and was not required for cross-examination.

Evidence and Submissions in the Applicant's case

• [14] Ms Bowler commenced employment with Trojan Wake Ski and Snow in or around December 2021. Ms Bowler was employed as a customer service representative and her role was to assist with in-store customer service, online customer enquiries, rostering and warranty related matters.

• [15] Ms Bowler provided a witness statement that included the following in relation to the process by which her employment was terminated:

"On 11 August 2023 I was told by my manager, Dylan Dauncey via a phone call that the business was 'not in a good spot at the moment'. Dylan asked me if I could talk with the other employees rostered on that day to ask if they could brainstorm ways for the company to bring in more profit.

I did not receive anything in writing about any prospective major workplace change or any indication at all that my position would become redundant at any stage.

On 16 August 2023 I was called into a meeting with the owner of Trojan, Roy Newland. I was told that the business was financially struggling. I was told that as a result I was being given two weeks' notice of termination of my employment.

I asked Roy why I had been selected to have my employment terminated rather than the multiple casual employees. Roy told me that it was because my job could be divided between the remaining people in the company.

I did not receive any indication or notice that my employment would be terminated prior to the meeting with Roy on 16 August 2023.

I did not receive any letter of termination on that day, only a text message from Dylan confirming that I was not required to attend work during my notice period, and an email from Roy on 17 August 2023 claiming that I was not entitled to receive redundancy pay on the basis that "Trojan Wake Ski Snow is classified as a small business"

• [16] Trojan Wake Ski and Snow operates two stores, the Vineyard store in Windsor and a second store in Rockdale. Ms Bowler said she was usually rostered to work at the Vineyard location and worked at the Rockdale store on the odd occasion.

• [17] If the dismissal was a case of genuine redundancy as defined in s.389 of the FW Act, then the dismissal cannot be an unfair dismissal under s.385:

A person has been unfairly dismissed if the FWC is satisfied that:

(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.

(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:

(b) the enterprise of an associated entity of the employer."

• [18] Genuine redundancy is a complete defence to an unfair dismissal application (per _Ulan Coal Mines Limited v Honeysett and other_s [2010] FWAFB 7578 at [26], [2010] FWAFB 7578; (2010) 199 IR 363).

• [19] I am required to decide whether the dismissal was a case of genuine redundancy before considering the merits of the application (per s.396).

• [20] Section 389 requires a series of stepped findings: firstly, whether the Applicant's job is redundant; secondly whether the employer complied with any applicable consultation obligations under a modern award or agreement and thirdly whether it would have been reasonable to redeploy the Applicant in another role (see Pankratz v Regional Housing Limited [2013] FWC 1259 at [6]- [9]).

Consideration - Was the Applicant's "job" made redundant because of operational reasons?

• [21] Section 389(1)(a) of the FW Act refers to an employer making a decision about an employee's "job". A job involves "a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employees' organisation, to a particular employee" (per Ulan Coal Mines Limited v Henry Jon Howarth and others (2010) 196 IR 32, [2010] FWAFB 3488 at [17] citing Jones v Department of Energy and Minerals [1995] IRCA 292; (1995) 60 IR 304 at 308).

• [22] The Full Bench in Roy Morgan Research Ltd v K Baker [2013] FWCFB 8936 at [27] expressed the view that an employer must provide evidence beyond "mere assertions [of a] desire to do things differently" (at [8], [26]-[27]). At paragraph [27] the Full Bench said:

"As was noted by Deputy President Gooley, the Appellant is entitled to restructure its HR team. However, if it wishes to contest an application for relief in respect of the termination of an employee made redundant as a consequence on the basis that the redundancy was due to the changed operational requirements of its enterprise (ss.385(d) and 389(1) of the Act), it must produce evidence to the Commission to support such a proposition, including evidence of the changed operational requirements."

• [23] There must be an appropriate evidentiary basis for the Commission's findings and the relevant facts are usually peculiarly within the knowledge of the employer respondent rather than the dismissed employee. Therefore, if an employer wishes to rely on the 'genuine redundancy' exclusion then they would ordinarily be expected to adduce evidence that they no longer required the dismissed employee's job to be performed by anyone because of changes in the operational requirements, that they met their consultation obligations and that it would not have been reasonable in all the circumstances to redeploy the dismissed employee (Technical and Further Education Commission T/A TAFE NSW v Pykett (2014) 240 IR 130, [2014] FWCFB 714 at [36]).

• [24] There are practical limits on the material that will need to be put by employers, as there are limits in the other matters heard by the Commission, to avoid defeating the intent of the genuine redundancy exclusion - in this regard an employer need only satisfy the Commission on the balance of probabilities (Kieselbach and Amity Group Pty Ltd, PR973864 at [34]-[36]).

• [25] The Full Bench in Teterin v Resource Pacific Pty Ltd [2014] FWCFB 4125 at [23]- [29], [2014] FWCFB 4125; (2014) 244 IR 252 at 261-263 explored the question of onus in some detail. The Full Bench accepted that the notion of an onus of proof imports legal doctrines that should have no part in the Commission's procedural or decisional process (at [23]). The Full Bench noted that the evidentiary onus, being "the burden of adducing or pointing to sufficient evidence to raise an issue for determination by the court", is borne by the party bearing the risk of non-persuasion as to the fact in issue (at [25]-[29]).

• [26] In this matter Trojan Wake Ski and Snow carried the risk of non-persuasion regarding the elements of s.389.

• [27] In my view Trojan Wake Ski and Snow did not meet its evidentiary onus. The material contained within Mr Newlan's statement, reproduced in full in paragraph [11] above, does not travel beyond mere assertions. His statement does not provide any sound evidentiary basis upon which I could be satisfied that Ms Bowler's position was made redundant because of changes in operational requirements. Frankly, the statement looks to me like a computer-generated collection of management buzzwords and contains almost nothing of substance relevant to these proceedings.

• [28] I am not satisfied on the evidence that Trojan Wake Ski and Snow made a decision that it no longer required Ms Bowler's job to be done by anyone because of changes in the operational requirements of the employer's enterprise.

• [29] The employer's genuine redundancy defence must fail.

Consideration - Did the Respondent comply with any applicable consultation requirements?

• [30] Trojan Wake Ski and Snow's genuine redundancy defence also fails on the second limb because, on the evidence provided, the employer did not comply with the consultation obligations under clause 34 of the General Retail Industry Award 2020 (the Award).

• [31] Clause 34 of the Award required the employer to take certain steps once it made a definite decision to make major changes in organisation or structure that are likely to have significant effects on employees. 'Significant effects' is defined in clause 34.5 to include "termination of employment."

• [32] Ms Bowler's original application squarely raised the consultation obligations under clause 34 as in issue in her case. Trojan Wake Ski and Snow led no evidence at all in relation to the process by which Ms Bowler was dismissed, let alone any evidence of consultation.

• [33] From Ms Bowler's evidence (reproduced at paragraph [15] above) it is clear that no consultation took place at all with her in relation to the apparent decision by the employer to make a position redundant.

• [34] I am not satisfied that the employer complied with its obligations to consult about the redundancy under the Award.

Consideration - Would it have been reasonable in all the circumstances to redeploy the Applicant?

• [35] Finally s.389 requires consideration of whether it would have been reasonable in all the circumstances for Ms Bowler to be redeployed within Trojan Wake Ski and Snow's enterprise at the time that her job was made redundant.

• [36] Neither party led any evidence about the existence of alternative positions to which Ms Bowler could have been redeployed. In the circumstances I am not satisfied that it would have been reasonable to redeploy Ms Bowler to another position.

• [37] Trojan Wake Ski and Snow filed a Form F3 Response to Ms Bowler's application. Question 1.7 on the Form F3 asks "How many employees did the employer have at the time the Applicant was dismissed?" The information note for that question says "Count the number of employees either at the time the employer gave the Applicant their notice or the time immediately before the dismissal, whichever was earlier. Count all full-time and part-time employees plus any casuals who were engaged on a regular and systematic basis."

• [38] Trojan Wake Ski and Snow indicated in answer to that question that it employed "10 full-time employees [and] 23 casual employees."

• [39] At question 2.2 on the same form Trojan Wake Ski and Snow indicated an objection that "the employer is a small business employer and the employer complied with the Small Business Fair Dismissal Code."

• [40] At the first telephone directions hearing Trojan Wake Ski and Snow appeared to abandon the notion that it was a small business employer, but then in correspondence prior to the hearing asserted again that it had less than 15 employees at the time it dismissed Ms Bowler.

• [41] In an email sent to the Commission on 3 October 2023 Trojan Wake Ski and Snow sent a list of what it described as "employees at the time (16/08/23)". The list contained eight names under a heading full-time, which included Ms Bowler's name, and three names under a heading "part-time/casuals." In total 11 names were provided.

• [42] One obvious and concerning inconsistency between the Form F3 and the second email is that the Form F3 refers to 10 full-time employees and the second list refers to only 8 full-time employees.

• [43] The whole of the evidence relied upon by Trojan Wake Ski and Snow is reproduced at paragraph [10] above, being one of the two statements made by Mr Newlan. Accepting that there might be room for interpretation about how many of the employees were employed on a regular and systematic basis, Mr Newlan's statement does not provide an evidentiary basis upon which I could conclude that there were less than 15 employees engaged by Trojan Wake Ski and Snow at the time that Ms Bowler was dismissed.

• [44] The closest Mr Newlan's statement comes to having probative value is his assertion in paragraph 3:

"As of the stated date, our company had less than the statutory number of full-time and part-time employees that would classify it as larger than a small business."

• [45] In this regard Mr Newlan provided no evidence regarding Trojan Wake Ski and Snow's casual employees and how many of them were or might have been employed on a regular and systematic basis.

• [46] At Ms Bowler's request an Order for Production was made for certain rostering records. At the hearing Ms Bowler relied on the documents produced by Trojan Wake Ski and Snow.

• [47] The records produced show at least 15 different employees rostered to work at the Rockdale store between 1 August 2023 and the day Ms Bowler was dismissed, being 16 August 2023. The records also show at least eight different employees working at the Vineyard store over the same period. Three other people appear on Trojan Wake Ski and Snow's list sent on 3 October 2023 who do not appear to have been rostered to work at either store in August 2023.

• [48] Trojan Wake Ski and Snow asks me to find that it had less than 15 employees on the date that Ms Bowler was dismissed. Trojan Wake Ski and Snow carries the evidentiary onus to provide a basis upon which I could be satisfied.

• [49] In summary I cannot be satisfied at all that Trojan Wake Ski and Snow had less than 15 employees given:

a) Trojan Wake Ski and Snow's initial indication on the Form F3 response on 22 September 2023 that it employed 10 full-time employees and 23 casual employees on a regular and systematic basis; > > b) Trojan Wake Ski and Snow's indication by email two weeks later on 3 October 2023 that it employed 10 full-time employees and three casual employees; > > c) Trojan Wake Ski and Snow's business records that indicate that at least 23 employees worked across two stores for Trojan Wake Ski and Snow in the two weeks prior to the dismissal of Ms Bowler; and > > d) Trojan Wake Ski and Snow's decision to lead no direct evidence of substance about its casual employees.

• [50] Trojan Wake Ski and Snow's jurisdictional objection is dismissed and Ms Bowler's application will be programmed for hearing on the merits.

Printed by authority of the Commonwealth Government Printer