Fair Work Commission|2023-01-16

Mr Daniel Snooks v Blake's Feast [2023] FWC 113 (16 January 2023)

s.394 - Application for unfair dismissal remedy

[1] On 5 August 2022, Mr Daniel Snooks (the Applicant) applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of his dismissal by Blakes Feast (the Respondent). Mr Snooks was employed by Blakes Feast from 3 January 2022 to 4 August 2022 as an Executive Chef.[1]

[2] Section 396 of the Act requires the determination of four initial matters before consideration of the merits of the application. Those matters are whether the application was made within the period required in s.394(2), whether the person was protected from unfair dismissal, whether the dismissal was consistent with the Small Business Fair Dismissal Code, and whether the dismissal was a case of genuine redundancy. Neither party put forward that either of the first three matters required consideration and in relation to those matters, I find that Mr Snooks' application was lodged with the Commission within the 21-day period for making applications required by s.394(2); that at the time of his dismissal he was protected from unfair dismissal; and that the Small Business Fair Dismissal Code has no application to his termination.

[3] On 22 November 2022, the Respondent filed a Form F3 - Employer Response to application for an Unfair Dismissal Remedy in which it raised the jurisdictional objection that the dismissal was an instance of genuine redundancy. The parties dispute whether the closure of Blakes Feast was the real reason for the Applicant's dismissal by the Respondent. Due to the interlinked nature of this question and the merits of Mr Snooks' unfair dismissal application, I determined these matters should be heard together.

[4] Having had regard to ss.397-399 of the Act and having consulted with the parties, I conducted a hearing on these matters on 22 November 2022. Mr Snooks appeared for himself. The Respondent was represented by Mr James Ryan of Counsel, permission having been granted by me pursuant to s.596(2)(a) of the Act. Mr Snooks and Ms Susan Findlay, the Respondent's former People and Culture Manager, gave evidence on behalf of the Applicant, and Mr Andrew Blake the founder and co-owner of Blakes Feast and Ms Kasey Thompson, the Respondent's Manager, and another co-owner, gave evidence on behalf of the Respondent.

[5] For the reasons set out below I am satisfied that Mr Snooks' dismissal was a genuine redundancy and that consequently his unfair dismissal application must be dismissed.

[6] The following account of the context of the dismissal is not in dispute between the parties.

[7] Blakes Feast is a family-owned events and catering business, which operated for 20 years employing a total of 60 staff at the time of Mr Snooks' dismissal.[2] Blakeaway, a separate legal entity and retail business owned by the same family, started during the pandemic in response to the cancellation and restriction of events in Melbourne. Blakeaway initially sold ready-made meals online, and has now shifted to selling ready-made meals, hampers, and homewares online and from retail stores.[3]

[8] On 28 July 2022, the Respondent announced that Blakes Feast would cease operations at the end of 2022.[4] This announcement was communicated to staff via an email which indicated the reason for this business closure as being "an incredibly difficult few years in catering," the problems posed by ongoing staffing shortages, and the success of the Blakeaway entity. The correspondence noted that Blakeaway was considered by the Respondent to be a "star performer" and was expected to soon open a fifth retail location in South Yarra.[5] The closure of Blakes Feast was also announced to the public and to the entity's business partners and customers via email, social media, and an article in the outlet Broadsheet on the same day.[6] On 28 July, a company-wide meeting also took place at which the Respondent announced the prospective closure to employees (the 28 July Meeting).[7]

[9] On 2 August 2022 a meeting took place between Mr Snooks, Mr Andrew Blake, the Manager and Co-owner of Blakes Feast, and Ms Susan Findlay, the then People and Culture Manager of Blakes Feast (the 2 August Meeting).[8] What was communicated between the parties at this meeting is in dispute. Following this meeting, a letter was emailed to the Applicant by Ms Findlay outlining his proposed redundancy (Proposed Redundancy Letter) and requesting feedback by 3 August 2022.[9]

[10] Mr Snooks responded to this letter on 3 August 2022 raising a number of concerns regarding aspects of the Proposed Redundancy Letter which he stated had not been discussed in the 2 August Meeting as follows: the measures which had been taken by Blakes Feast to avoid the impact of the redundancy, the possibility of an alternate role, and his entitlement to payment in lieu of notice.[10]

[11] On 4 August 2022 a letter was sent to Applicant by Ms Findlay confirming that he had been made redundant as of that day.[11]

[12] On 18 November 2022, Mr Snooks sought orders from the Commission for the attendance of several witnesses, which were declined by me. The orders he sought for the attendance of Ms Kasey Thompson and Mr Andrew Blake were unnecessary to issue since each was listed as attending on behalf of the Respondent (and did so). In relation to Ms Susan Findlay, who had left the Respondent's employment after the Applicant left, Mr Snooks was advised he should approach her for the purposes of giving evidence on his behalf, which he successfully did.

[13] Mr Snooks also sought Orders for the production of two classes of documents:

from the Respondent's landlords "Any documentation, including emails or text messages, from Jennie Blake, Andrew Blake, Kasey Thompson or Neredah Mcintosh, that related to Atcon Property being informed that I, Daniel Snooks, had quit my role at Blakes Feast"; and

from Ms Kasey Thompson "The signed and dated Non-disclosure Agreements that Blakes Feast issued to Mr. Tom Cappel (Blakeaway head chef) and Ms. Amy Deluca (Blakes Feast Senior Business Development Manager)."

[14] Orders of these types were issued with some minor amendments.

[15] In relation to the first class of document, correspondence from the Respondent's landlords confirmed that they did not possess any materials identified by the order.

[16] Pertinent to the second class of document the Respondent's solicitor noted that there was not a non-disclosure agreement signed by Ms Deluca, however it had located an unsigned non-disclosure agreement prepared for Mr Cappel, noting the signed copy could not be located, as well as the correspondence which enclosed it. These materials were produced under the objection that they were not material to the proceedings with relevant information regarding the reasons for the existence of a non-disclosure agreement already admitted to by the Respondent in their materials, giving the Applicant the opportunity to cross-examine the Respondent on these matters should he wish to. Later correspondence from the Respondent's solicitors confirmed they consented to the Commission determining this objection on the papers.

[17] On 22 November at 9:22AM my Chambers provided correspondence to the parties providing a summary of the materials provided and a copy of the Respondent's correspondence providing these materials and raising objections to their provision, and the following proposed determination:

"Subject to anything the Applicant or Respondent may wish to say on the subject at the commencement of today's proceedings I propose to determine that the documents do not have sufficient apparent relevance to the matters to be determined by the Commission and that such relevance as they may have can be dealt with by me disclosing and relying upon, if necessary, the following summary..."

[18] At the commencement of the hearing, I raised this correspondence with Mr Snooks and provided the following summary of my determination on the matter,

"The view I have after reading the documents is that they don't have what is called apparent relevance to the matters that I need to determine... I think the only things that are relevant are the reference that it was laid out as a document to be signed by Tom Capel, Nerida McIntosh, that each document is unsigned and appears to prevent the disclosure of confidential information as defined and then the other relevant - apparently relevant matter is the email that was sent on 24 June at 11.34 am. So, I consider that those are the only relevant aspects of the documents."[12]

[19] Mr Snooks confirmed he was content with the provision of this summary of the materials.[13]

[20] In this case the Respondent argues Mr Snooks was dismissed for reason of genuine redundancy and does not say that Mr Snooks' capacity or conduct was the reason for his dismissal. While that is so Mr Snooks puts forward that because of things said to him by Mr Blake at the time of termination he believes matters of capacity or conduct were the Respondent's operative reasons for termination. While those contentions are amply evident, s.396 requires determination of whether his dismissal was a case of genuine redundancy "before considering the merits of the application".

[21] The Act defines a genuine redundancy in the way set out in s.389:

(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.

[22] It is evident from the above that the features of a genuine redundancy include that the job in question is no longer required to be performed by anyone because of changes in the operational requirements of the employer's enterprise; that the employer has complied with any obligation of an applicable modern award or enterprise agreement to consult about the redundancy; and a termination cannot be a genuine redundancy if redeployment would have been reasonable in the circumstances.

[23] The Respondent's submissions were primarily concerned with the jurisdictional objection that the Applicant's dismissal as the executive chef of Blakes Feast was an instance of genuine redundancy precipitated by the cessation of the Blakes Feast business.

[24] The Respondent submitted that, following the decision to close Blakes Feast, it reviewed the expected requirements of the business for the remainder of 2022 in light of a forecasted reduction in revenue.[14] The Respondent noted that the decision to close Blakes Feast at the end of 2022 also entailed a 'winding down' of the business which was expected to result in reduction in workload and revenue.[15]

[25] Following this review, the Respondent submitted it came to the conclusion that,

"a number of key tasks and responsibilities of the Executive Chef role were no longer required to be performed and the balance of this role could be absorbed by others within the team for the next 5 months."[16]

[26] In relation to the issues of consultation and redeployment, the Respondent submitted that there were two conversations with the Applicant regarding potential redeployment which together amounted to adequate consultation on the topic. These were:

• During the 2 August Meeting Mr Snooks was invited to provide feedback before a final decision was made regarding the redundancy of his position.[17] When the Applicant asked what his alternatives to redundancy were, he was informed by Ms Findlay the only options the Respondent could see entailed a demotion in salary and position, to which the Applicant indicated he was not interested in such a role.[18]

• Following the 28 July Meeting "the Applicant was asked by Ms Findlay whether he would consider a role within Blakeaway to which [he] responded he could not see himself as a chef of a 'food production kitchen' and producing large quantities of food 'probably wasn't for (him)', suggesting that he considered such work to be 'boring' or possibly 'beneath' him, and further stated that he enjoyed the 'variety' of catering and events."[19]

[27] The Respondent submitted that the comments regarding Mr Snooks' performance made in that meeting were due to his request for feedback on his work for the Respondent.[20]

[28] In relation to the jurisdictional objection that his dismissal was precipitated by a genuine redundancy, the Applicant contends that this was not the case. He argues that the Respondent's concerns regarding his performance were the real reason for his dismissal.

[29] In relation to whether the operational requirements of the Respondent had genuinely changed so that the Applicant's job was no longer required to be done by anyone, Mr Snooks submitted that while the Respondent's operational requirements clearly changed, these changes did not come into effect until 17 December 2022 when the closure of Blakes Feast occurred.[21]

[30] Mr Snooks also disputed the Respondent's statements, in the Letter of Proposed Redundancy, that the operational requirements of the Respondent had changed such that two aspects of his role, the writing of menus, and any further staff recruitment in 2022, were no longer required. On the issue of menu writing, Mr Snooks submitted that while it had been necessary to write a menu for the remainder of the year, this had already been done by Mr Blake and sent to him on 26 July 2022, lending weight to his termination having been decided well prior to him being informed.[22]

[31] Mr Snooks also submitted the Respondent had placed employment advertisements on the website Seek in order to recruit a Pastry Chef following his termination.[23]

[32] In relation to whether the employer had complied with its obligation to consult under clauses 38.1 and 38.2 of the Hospitality Industry (General) Award 2020 (the Award) and to whether he was truly considered for redeployment, Mr Snooks submitted that there had been a failure to adequately consult with him regarding potential redeployment.

[33] In oral submissions, the Applicant agreed with the submission of the Respondent that, following the 28 July Meeting, he had been approached by Ms Findlay and asked whether he would consider a role within Blakeaway. The Applicant submitted that he had responded to this something to the effect that he could not see himself in the role and preferred the variety of events.[24] However, the Applicant emphasised that at this time he had not been made redundant or apprised of the possibility of redundancies.[25]

[34] The Applicant submitted that redundancy was not raised during the 28 July Meeting, and that an opportunity was not presented for him to raise views regarding the closure of Blakes Feast and any potential problems its presented.[26] He also submitted that at no point during the 2 August Meeting was he asked to provide feedback regarding the proposed redundancy.[27]

[35] Mr Snooks submitted that there had only been one conversation with him regarding potential redeployment following the advice of his potential redundancy, which occurred during the 2 August Meeting between himself and Ms Findlay. Ms Findlay's witness statement provided her account of this exchange as follows,

"Dan asked me what his options were, to which I responded the only option I could potentially see would be for him to take a lower position and therefore, lower salary. I asked Dan if that would be something he'd be ok to do, to which he responded 'no it would not'. Offering Dan a lower level role was a hollow gesture, as I knew Blakes didn't want him in the company and there was no way they would have agreed to such a proposal."[28]

[36] Mr Snooks accepts he was asked in the meeting by Ms Findlay as to whether he would take a lower-level position[29] elaborating that he "asked Ms. Findlay what this meant for me, if it was a redundancy, and she said that potentially there could be a lower position and lower salary. As I was in total shock from what had happened, of course I replied that I didn't think that would work".[30] In oral submissions, Mr Snooks emphasised that no specific role, with specified position title, hours, or salary, was proposed to him at this time.[31]

[37] He noted that the Respondent had made use of the Supp app to fill casual chef roles following his termination and submitted that this was work which he was well qualified to perform, and which had not been specifically offered to him as a potential redeployment option.[32]

[38] In relation to the merits of his Application, Mr Snooks submitted that reasons given by Mr Andrew Blake for his dismissal were vague and had not been raised with him previously, with no time or assistance given to him to improve his performance, or opportunity provided for him to respond to the reasons given.[33] He recalled these reasons, as relayed to him by Mr Blake in their 2 August Meeting as being,

"...that the owners had been a bit disappointed that I hadn't fulfilled the role as they had expected. Andrew Blake also mentioned that they had not been happy with some of the menu items I had made, and that I "hadn't taken the job by the scruff of the neck."[34]

[39] He stated in this meeting Mr Blake had offered to provide him more specific feedback in an email later that night, but that Mr Blake never provided this further detail to him.[35]

[40] Mr Snooks also noted that, while he did not request a support person for the 2 August Meeting, Ms Findlay had subsequently given evidence that on the morning of the 2 August Meeting she had a discussion with Mr Blake to the following effect,

"I then also advised Andrew that in these situations we would need to offer Dan Snooks a support person. Andrew Blake responded that Dan Snooks gets paid too much money for that and he wouldn't be offering any such thing."[36]

[41] Mr Snooks submitted that this interaction made clear that should he have requested a support person he would not have been allowed one.[37]

Whether job in question no longer required to be performed by anyone

[42] I am satisfied the Respondent no longer required Mr Snooks' Executive Chef position to be performed by anyone because of changes in its operational requirements.

[43] The evidence before me is that Blakes Feast's catering operations were to wind-down and cease by the end of 2022. The company's July 2022 announcement to customers and suppliers told them Blakes Feast planned to "step away from catering & events at the end of the year to focus solely on BLAKEAWAY", explaining that "Blakes Feast will continue to operate up until December 31st, 2022 when she will gracefully retire".[38] The Broadsheet article included not dissimilar information, however stated categorically that "Blakes Feast will close at the end of the year".[39] The Blakes Feast notification to staff included similar reasoning as well as a commitment to discussion and transparency;

As you know we made a major announcement this morning about the future of Blakes Feast and Blakeaway. We understand there was a lot to take in with the information we shared and also that you may have questions.

Whilst we haven't worked out all of the specifics just yet, we do want to assure you that we will be as transparent as possible over the next few months.

We will schedule times to meet with each of you separately to discuss any concerns you may have and also how this will impact you.

For your reference please see the main points that were discussed this morning;

Today we are announcing our plan to step away from catering & events at the end of the year to focus solely on Blakeaway. Blakeaway's success, in combination with an incredibly difficult few years in catering, has led to this logical next step in our business's evolution. Staffing shortages have made it almost impossible to perform to the exacting standards that we set pre-Covid.

We are incredibly thankful to our wonderful clientele who have entrusted Blakes Feast to deliver their most memorable celebrations over the last 20 years. We look forward to continuing those relationships via Blakeaway.

We launched Blakeaway in 2020 during Melbourne's first lockdown, after losing every one of our event bookings within 24 hours. Recognising that we needed to act fast to survive, we drew on the expertise and skills of our talented team to create ready-made meals that people could enjoy in their homes.

What was originally a side-hustle to survive, quickly became a star performer. Within eight months of launching online, we opened our first retail store in Portsea.

Blakeaway's success to date and its future potential is what has justified this change in our business's direction.

Our reason for being will never change. We will still be producing food worth celebrating. Food and family will remain at the heart of what we do.

Our team are delighted at the prospect of being able to focus their attention solely on striving to be Australia's premier pre-prepared meal producer & retailer.

We are very excited to announce that we will be opening our fifth Blakeaway retail store in South Yarra in September. This new store will feature Blakeaway's premium range of ready meals, house made condiments, sweet treats, and cocktails, as well as exclusive homewares. Now people in the South Yarra area and surrounds can enjoy an in person Blakeaway experience.

A special thank you to all our staff for their incredible work and loyalty. Hospitality is a hard gig at the best of times, let alone during a pandemic, and the commitment and resilience they have displayed has been outstanding. We can only be as good as our staff allow us to be.

We would like to acknowledge the significant role our wonderful partners and suppliers have played in our journey to arrive where we are today. We're a business built on relationships.

Blakes Feast will continue to operate up until December 17, 2022 when she will gracefully retire.

In the meantime, if you have any questions please let me know.

sue findlay people and culture manager"[40]

[44] The evidence also includes the undisputed submission by the Respondent that "Blakeaway is a separate legal entity".[41]

[45] Mr Snooks accepts in finality that his role of Executive Chef was not needed moving forward but argues "the way in which it was executed by Mr Blake was the wrong way in that he led with the termination of me and not talking about redundancy in that meeting or letting Ms Findlay talk about redundancy".[42] This latter contention connects with Ms Findlay's evidence which includes the following:

"In early July I was advised by the owners of Blakes Feast that they would be making a major business decision to close one part of the company (Blakes Feast) and focus on the more profitable business (Blakeaway). I was asked on numerous occasions to provide advice on various HR matters related to the closure of the business.

One of these matters concerned the Executive Chef's position. The business owners were not happy with the Executive Chef's (Daniel Snooks 'Dan') performance and asked how they should proceed. There were a few discussions that took place, mainly between myself and Kasey Thompson (one of the CEO's of Blakes Feast).

I advised Kasey that if they weren't happy with Dan's performance then they would need to performance manage him. Kasey told me she was aware of the performance management process, and we did discuss it at a high level. Kasey asked if we could make Dan's role redundant and we discussed the process that would need to happen if that were the case. Kasey and the Blakes family made the decision to make the Executive Chef position redundant, particularly as they would incur no costs as Dan had been employed with Blakes for less than a year.

On Thursday 28th July 2022, Blakes Feast held an employee meeting and advised most of the team (particularly the full-time employees) that after 20 years of business they would be finishing the Catering and Events arm (Blakes Feast) of the business at the end of 2022. It was also discussed that myself and Andrew Blake would meet with each Chef individually to discuss potential future roles and employees could raise any concerns they may have. We scheduled all of these meetings for Tuesday 2nd August. On the morning of Tuesday 2nd August myself and Andrew Blake had scheduled a meeting with Dan Snooks at 9.30 am to propose the redundancy of his position. I got into work early on 2nd August to have a chat to Andrew Blake before we met with Dan Snooks so we would be on the same page. I said to Andrew that we need to talk about redundancy with Dan, to which Andrew responded, 'I'm going to tell him his performance is no good and he's not up to the job'. To which I responded to Andrew, that's a different conversation and process than redundancy. Andrew responded he would deal with the matter how he saw fit. I then also advised Andrew that in these situations we would need to offer Dan Snooks a support person. Andrew Blake responded that Dan Snooks gets paid too much money for that and he wouldn't be offering any such thing.

We proceeded with the meeting with Dan Snooks that morning at 9.30 am. Andrew Blake started the meeting advising Dan that Blakes was letting him go. When Dan asked Andrew if he could give him any feedback, Andrew informed Dan that this was all about his performance, and didn't mention his role being redundant. At the end of the meeting and the first time I talked in this meeting, I tried to let Dan Snooks know that this was meant to be a redundancy and attempted to outline the process to him. I believe the words I used were 'this is technically a redundancy'. Dan asked me what his options were, to which I responded the only option I could potentially see would be for him to take a lower position and therefore, lower salary. I asked Dan if that would be something he'd be ok to do, to which he responded 'no it would not'. Offering Dan a lower level role was a hollow gesture, as I knew Blakes didn't want him in the company and there was no way they would have agreed to such a proposal." [43]

[46] Ms Findlay confirmed in her oral evidence that the plan in the meeting on 2 August 2022 was to make Mr Snooks redundant, but that the discussion was delivered differently in the meeting, with her reverting to the matter of redundancy in an email to Mr Snooks later that day, and subsequently on 4 August 2022 when the termination of employment letter was sent to him. While denying the Respondent's recollection of the things discussed in the 2 August 2022 meeting, she accepted Mr Snooks was made redundant in this exchange with Blakes Feast Counsel, Mr Ryan:

"... Now, you also prepared the redundancy letter dated 4 August that was provided to Mr Snooks, is that right?---Yes. Indeed, yes.

All right. So, it was your understanding he was made redundant. Leaving aside how the meeting might have went with Mr Blake, he was made redundant?---Yes.

And you were following the process of making him redundant?---Yes.

All right. Now, in terms of - I just need to put something, in terms of what actually happened at the meeting on 2 August with Mr Blake, yourself and Mr Snooks, I suggest to you what you put in your statement isn't correct, that it didn't happen the way you've put it?---I disagree.

All right. That Mr Blake made some comments about the applicant's performance in response to a request for feedback?---Sorry, I don't - is there a question there?

Yes. Mr Blake will say contrary to what you've said, that at that meeting Mr Snooks asked him for feedback after they were consulting about the probable redundancy. Mr Snooks asked him for feedback and Mr Blake gave him some feedback about how he might improve in the future?---From my recollection of the meeting, there was never any - the word, 'Redundancy', didn't come up. It was about we, from memory, 'We've decided to let you go.' And then I think Dan asked about - to give some feedback and then there was some feedback given on performance."[44]

[47] Three people attended the 2 August 2022 meeting, which commenced at about 9:30 AM - Mr Snooks, Ms Findlay and Mr Blake. Mr Snooks' evidence is that Mr Blake had told him he was being terminated due to performance issues and it was left to Ms Findlay to say "this was technically a redundancy".[45] Mr Blake denied the construct put forward by Ms Findlay and Mr Snooks - that the matter of redundancy was not discussed - saying firmly that the "first part [of the meeting] was definitely about the redundancy".[46]

[48] Despite these differences in recollection, I am satisfied that by the time the meeting ended it had been communicated to Mr Snooks that his employment was to end for reason of redundancy. Following the meeting Mr Snooks engaged with Ms Findlay in a discussion and by email acknowledging, his "position moving forward has been made redundant" as well as seeking a copy of the letter Ms Findlay had shown to him in their meeting,[47] which Ms Findlay provided to him later that afternoon. Her evidence on the subject includes,

"Around lunch time on 2nd August, I received a text message from Dan Snooks asking to meet with me. We met immediately in the Boardroom. Dan was obviously very upset and shocked at what had occurred. He said we had just recently conducted his appraisal and nothing had been mentioned about his performance. Dan asked if I had a copy of his appraisal to which I responded, 'I'm not sure if I've typed up the notes yet but I have my notes in my notepad that I could provide'. We discussed the meeting with Andrew and what had transpired earlier that morning. Dan said to me that this is unfair and this is not a redundancy.

That afternoon when I sent Dan the Proposed Redundancy Letter, he understandably got very angry and his response back to me was that he was seeking legal advice. As per normal, I forwarded Dan's email to Kasey Thompson for her information.

The following day (my non-working day) I received an angry text message from Kasey saying that the whole situation with Dan was 'a mess'. I was picking up my daughter from dance class but thought it was easier to call Kasey. She was very angry, saying to me 'why do we have to follow this process', 'this whole thing is a complete mess' (implying that I had made the situation a mess). To which I responded, 'this wouldn't be a mess if you followed the process'.

The next morning Kasey called me into a meeting and reiterated the same thing, that the whole thing was a mess now and she didn't understand why it was a mess as this was a redundancy. My exact words to Kasey were 'Kasey I know you're saying it's a redundancy, but what you say and what actually happened are two different things'. She looked at me and in her abrupt, rude and directive manner said 'This is a redundancy, do you understand'.

On Thursday 4th August I sent a letter to Dan Snooks confirming his position was redundant."[48]

[49] Despite accepting that Mr Snooks was told in the 2 August 2022 meeting that he was to be made redundant, I also accept that Mr Blake vocalised performance criticisms of him and that Mr Snooks likely viewed the criticisms as a dominant part of the communication. Even so he knew by the end of the meeting that he was to lose his job for reason of redundancy and engaged with Ms Findlay on that basis after the meeting, both on the same day and afterwards.

[50] Against these circumstances the Respondent's contention that Mr Snooks' dismissal was a genuine redundancy requires testing against the criteria within s.389 and, in particular, that Blakes Feast no longer required his job "to be performed by anyone because of changes in the operational requirements of the employer's enterprise". In this regard there is no significant question that Blakes Feast operational requirements had changed or were about to change: staff, suppliers and customers had been notified that the business would not continue after the end of 2022 with the owners' focus switching to Blakeaway, working under a separate legal entity.

[51] Mr Snooks argues that at the time he was dismissed, 4 August 2022 the change in the Respondent's operational needs had not crystallised, since the business would remain open until 17 December 2022 meaning that until that time "all aspects of my job and role would be required to be done by someone".[49]In her oral evidence Ms Thompson put forward that for the Respondent's spring/summer catering offerings there would be a "best of" menu focussing on dishes Mr Blake had developed in the 20 years of Blakes Feast. That thinking had started in May, before plans to close the business had been formed, and since the dishes had all been developed and delivered by Mr Blake there was no need to consult with Mr Snooks.[50]Ms Thompson further explained that an executive chef role was required if running two businesses, but not one,[51]a point of view shared by Mr Snooks.[52] Ms Thompson's evidence also explained why Mr Snooks' termination of employment occurred in August,

"7. The difficult decision to cease Blakes Feast's operations was made in the context of the challenges Blakes Feast and the hospitality industry more broadly, particularly events and catering, had suffered during the Covid-19 pandemic and continue to suffer due to workforce shortages and increasing costs. At the time of the announcement significant changes had already been made to our operations as a result of these challenges, including winding down and ceasing to operate certain venues as well as capping the number of events. Additionally, Blakes Feast had forecast that there would be a substantial reduction in revenue for the remainder of 2022.

8. As indicated in the various announcements, whilst Blakes Feast's events and catering operations would cease, the Blakeaway retail business will continue. Blakeaway is a separate legal entity and a retail business which was commenced during the Covid-19 pandemic in response to lockdowns and cancellation of all events. Initially, Blakeaway sold readymade meals online. Blakeaway now sells ready-made meals, hampers and homewares online and from retail stores. It is a very different business to Blakes Feast with different operational and employee requirements.

9. As a result of the decision to cease the Blakes Feast business, an initial review was undertaken of what would be required to operate efficiently and cost effectively during our transition period (August to December 2022), noting the substantial reduction in revenue for the remainder of 2022 which had been forecast. To that end we looked at;

(b) the number of employees in senior leadership positions;

10. Following this review and in light of the winding down of Blakes Feast's operations resulting in a significant reduction in workload and associated reduction in revenue, it was determined that a number of key tasks and responsibilities of the Executive Chef role were no longer required to be performed and the balance of this role could be absorbed by others within the team for the next 5 months."[53]

[52] The explanation given both by Ms Thompson and Mr Blake is reasonable and consistent with what might be expected of a business announcing a close-down at a future date. Steps plainly would have to be taken progressively to reduce costs while maintaining operations until the close-down date.

[53] As a result, I am satisfied that Blakes Feast no longer required Mr Snooks' job to be performed by anyone because of changes in its operational requirements of the employer.

Whether employer complied with modern award consultation obligation

[54] The parties accept the Hospitality Industry (General) Award 2020 (the Award) applied to Mr Snooks' employment which provides the following about consultation with employees,

38.1 If an employer makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must:

(a) give notice of the changes to all employees who may be affected by them and their representatives (if any); and

(b) discuss with affected employees and their representatives (if any):

(iii) measures to avoid or reduce the adverse effects of the changes on employees; and

(c) commence discussions as soon as practicable after a definite decision has been made.

38.2 For the purposes of the discussion under clause 38.1(b), the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including:

(c) any other matters likely to affect employees.

38.3 Clause 38.2 does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer's interests.

38.4 The employer must promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussion under clause 38.1(b).

38.5 In clause 38 significant effects, on employees, includes any of the following:

(b) major changes in the composition, operation or size of the employer's workforce or in the skills required; or

(c) loss of, or reduction in, job or promotion opportunities; or

(f) the need for employees to be retrained or transferred to other work or locations; or

38.6 Where this award makes provision for alteration of any of the matters defined at clause 38.5, such alteration is taken not to have significant effect."

[55] Operation of the clause is triggered by the making of "a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees" and there is no question that the circumstances in which Blakes Feast found itself in August 2022 meet this test. Numerous people were to lose their job, or have their job changed which plainly meet the definition of "significant effects" as set out in Clause 38.5.

[56] At this point Blakes Feast was obliged to give notice of the changes to affected employees and their representatives and to then discuss with employees and their representatives the things set out in Clause 38.1(b) and to commence those discussions "as soon as practicable" after the definite decision was made (Clause 38.1(c)). Clause 38(2) requires information in writing to be given to the affected employees and their representatives ad Clause 38(4) requires the employer to promptly consider any matters put to the employer about the notified changes.

[57] Notice generally was given to employees including Mr Snooks on 28 July 2022 and thereafter of the impending changes to Blakes Feast's operations with the initial notification not explicitly referring to the potential for redundancy or job losses.

[58] The first time Mr Snooks was advised of the possibility of redundancy appears to have been in the meeting with him on 2 August 2022 and as set out in the letter provided to him by Ms Findlay on the same day. That letter communicates that Mr Snooks position is "surplus to Blakes operational needs and could be made redundant", giving brief reasons why that view had been formed. The letter also communicated Blakes Feast sought his feedback by the end of the following day,

"We have considered measures to avoid or reduce the impact on you brought about as a consequence of this business decision and subsequent operational change. Over the next 24 hours we will try to identify alternative roles for you elsewhere in the business.

If the redundancy proceeds, your final pay entitlements will be comprised of the following:

2. Payment of an amount of 2 weeks' payment in lieu of notice.

As we discussed, we would like to receive your feedback on the proposed redundancy. Please provide this to me by cob tomorrow (Wednesday 3rd August). Once we have received your feedback we will conclude whether your redundancy will proceed and advise you of the outcome."[54]

[59] Ms Findlay's evidence, which is accepted by the Applicant, puts forward that the matter of alternative work was discussed in the meeting, with the possibility being rejected by Mr Snooks,

[60] Notwithstanding the opportunity may have been a hollow gesture, the possibility of working in a lower position was rejected by Mr Snooks in the meeting. Mr Snooks is critical of Blakes Feast that "No real efforts were taken to provide me with any specific Job roles or positions that I could be given. No offer of alternative work was given"[56] However the coherence of Mr Snooks' evidence and submissions in total, both written and oral, was that he was not favourably disposed to consider an alternative placement if that meant working in a lower position.

[61] Mr Snooks responded on 3 August 2022 to the matters set out within Blakes Feast letter to him, writing,

Regarding the proposed redundancy, I have read over it, and am seeking external advice in regard to the best way to respond, moving forward. I have some concerns about comments made on the redundancy document, that were not discussed during our meeting yesterday, the 2nd of august 2022, including The measures Blakes Feast took to avoid the impact of my redundancy,

The fact no alternative role was discussed with me, yet you have said you will try to identify one.

The fact that regardless of my acceptance of the letter, as I have been terminated, I am entitled to the payment in lieu of notice.

Also, it says my role 'could be made redundant'. I believe this should be 'will' be made redundant, as if it is a genuine redundancy, the role will not be offered in the future.

I will keep you informed of the advice I receive moving forward, and how that impacts the Proposed redundancy

[62] Blakes Feast then responded through Ms Findlay confirming Mr Snooks redundancy and its reasons as well as explicitly responding to the matters Mr Snooks put forward the day before.

[63] These matters lead me to be satisfied that the requirements of Clause 38 of the Award had been met by Blakes Feast. The consultation obligation cast by the Award was for notice and information to be given, for discussion, and for prompt consideration of "any matters raised by the employees or their representatives about the changes in the course of the discussion". I am satisfied that notice, provision of information and discussion as soon as practicable took place and that such matters as Mr Snooks raised both in the meeting and afterward were considered by Blakes Feast. There were no matters of substance raised by him.

Whether redeployment would have been reasonable in the circumstances

[64] I am also satisfied Blakes Feast considered and determined it would not have been reasonable in all the circumstances to redeploy Mr Snooks. The opportunities for redeployment would be confined either to short-term engagements within Blakes Feast, lasting at most only until it's closedown in December 2022, and opportunities within Blakeaway, potentially for a greater period of time.

[65] Mr Snooks is critical of several matters relevant to redeployment; after he left a former Blakes Feast executive chef returned, as well as it being the case that Blakes Feast advertised for employees. He also argued he should have been considered for redeployment into the Blakeaway business.

[66] In relation to the former contention the Respondent argues that although the person concerned returned has not been offered a permanent role; does not work as an executive chef, but as an independent contractor. Further, the Respondent submitted,

"Given the Applicant's position, salary and feedback regarding a 'lesser' role, working on an ad hoc basis without guaranteed work in a less senior role and lower salary was not considered to be a suitable redeployment alternative for the Applicant"[58]

[67] In relation to the engagement of casual employees after he left, Blakes Feast argues,

"The Applicant has further referenced that Blakes Feast uses an application called 'Supp' to fill casual shifts. Blakes Feast has used this application over many years and continues to do so in the event of surplus work. Use of casuals, contractors and the Supp application is common practice in the events and catering industry as these measures assists to manage the peaks and troughs of business. Blakes Feast use this application only as a 'last resort' due to the very high salary costs on this application. The roles referred to by the Applicant are chef roles and not at the same level as an Executive Chef. Given the Applicant's position and salary, working on an ad hoc basis without guaranteed work in a less senior role and lower salary was not considered to be a suitable redeployment alternative for the Applicant."[59]

[68] The Respondent also argued that redeployment into the Blakeaway business was considered but was not feasible,

"... In reviewing suitable alternatives for the Applicant, Blakes Feast considered the roles available in Blakeaway. In the Blakeaway structure the most senior Chef role is Head Chef, which is not a vacant role and is less senior with a lower salary than an Executive Chef. The current Head Chef of Blakeaway has the requisite experience for the Blakeaway role, including experience in preparing premade meals and packaging, which are significant and critical parts of Blakeaway's operations. Nevertheless, following the meeting with all employees on 28 July 2022, the Applicant was asked by Ms Findlay whether he would consider a role within Blakeaway to which is responded he could not see himself as a chef of a 'food production kitchen' and producing large quantities of food 'probably wasn't for (him)', suggesting that he considered such work to be 'boring' or possibly 'beneath' him, and further stated that he enjoyed the 'variety' of catering and events."[60]

[69] While Mr Snooks does not agree that he said the indicated positions were boring or beneath him, he agrees saying that he enjoyed the variety of events.[61]

[70] The evidence shows there was discussion with Mr Snooks about alternatives, albeit not specific identifiable positions. Such discussion as there was would have left Mr Snooks clear that the positions would not be at the same level as executive chef. The same discussions would have left Mr Blake and Ms Findlay with the impression that Mr Snooks was not interested in being redeployed into a lower position, or one that was not full time.

[71] It follows that redeployment into another position, whether in Blakes Feast or Blakeaway, would not have been reasonable in all the circumstances.

[72] The evidence shows that Mr Blake spent significant time in the 2 August Meeting critiquing Mr Snooks' work performance. Ms Snooks' version of Mr Blake's comments is as follows,

"Look, unfortunately we have made the decision to let you go. There have been some issues and things we have not been that happy with....Look, there have been some murmurings amongst the other staff about how you act in the kitchen, and we just don't feel like you've grabbed the role by the scruff of the neck. When you look at someone like Dylan (the previous executive chef, who has since returned to work for Blakes Feast), he really got in and took charge, and we just don't feel you've been able to do that."[62]

[73] Ms Findlay's version is that Ms Blake informed Mr Snooks "that this was all about his performance, and didn't mention his role being redundant".[63]. Mr Blake's witness statement claims that he stated only "At that meeting Ms Findlay and I told the Applicant that due to 'the closure of Blakes Feast in a few months' time, the Applicant's role of Executive Chef would no longer be I required and that we were proposing to make the role redundant"[64] and makes no mention of any work performance concerns he may have held about Mr Snooks. His oral evidence includes the following in response to questions first from Mr Snooks and then myself,

"Right and so in the meeting you explained to me that I had been under-performing in my role. Why was this the main part of the meeting and not a discussion of redundancy?---It wasn't the main part of the meeting. That's where my version of events differs from yours. I took out an envelope and slid it across the table. We were sitting opposite each other and I gave you the opportunity to read it then and there or to read it later in your own time but it was a letter of proposed redundancy. So that happened first before anything else.

Right. Well, obviously I dispute those facts. There was no envelope?---Yes.

There was no envelope ever presented. Also as I've stated, that proposed letter of redundancy was not emailed to me until about 3.47 on the afternoon of 2 August. So I'm just wondering how you could have presented it to me if it wasn't given to me in that meeting?---No, well, I did give it to you in the meeting and it wasn't a letter, it was a proposed redundancy letter."[65]

"THE COMMISSIONER: Mr Blake, can I just clarify - - -?---Yes.

- - - you say words to the effect that you gave the letter to him in the meeting?---Yes.

Now, that could mean either you showed it to him but retrieved it or, alternatively, it could mean that you gave it to him and he took it away. So which of those do you recall it being?---It was in an envelope and I slid it across the table and he opened it up and it was pretty - a fairly simple document but it was definitely given on the day.

Given in what sense? He took it away with him or he gave it back to you?---He took it away.

[74] Two things are to be drawn from this oral evidence; Mr Blake may be taken to concede there was some discussion in the 2 August Meeting about Mr Snooks' work performance, ("It wasn't the main part of the meeting") and he is plainly wrong in his contention that the proposed redundancy letter was given to Mr Snooks in the meeting who then took it away. The documentary evidence shows that Mr Snooks had to ask Ms Findlay for the letter who then provided it later the same day.[67]

[75] Having considered all of the evidence and especially the oral evidence of Mr Blake I do not accept as accurate his written evidence which conveys the impression that work performance matters were not discussed in the 2 August Meeting, with it being most likely that he had gone significantly off-script when discussing Mr Snooks' employment with him. Ms Findlay retrieved the situation, but is likely understating the extent of the discussion had with Mr Snooks about the reason for his termination of employment. It was plainly not news to him that he was being terminated for reason of redundancy when he enquired of Ms Findlay also on 2 August 2022,

"Based on today's discussions, my position moving forward has been made redundant.

Could I please have the copy of the letter you showed me in our meeting, outlining the redundancy, sent to me by end of day today?"[68]

[76] Ms Findlay also reports Mr Blake telling others that Mr Snooks had been dismissed for performance issues. In particular, after the 2 August Meeting,

"... Andrew Blake and I then met with each Chef to discuss their future with the business (as the Catering arm would be closing at the end of the year). Andrew told the Chefs that we met that he had 'sacked' Dan because of Dan's performance and we were bringing back Dylan Roberts (the previous Exec Chef) to work at Blakes until the end of the year.

Later that morning (2nd August) I advised Kasey Thompson and Jennie Blake what had happened and things got highly stressful - they were both really mad. Kasey directed me to continue with the redundancy process, which I did.

Around lunch time on 2nd August, I received a text message from Dan Snooks asking to meet with me. We met immediately in the Boardroom. Dan was obviously very upset and shocked at what had occurred. He said we had just recently conducted his appraisal and nothing had been mentioned about his performance. Dan asked if I had a copy of his appraisal to which I responded, 'I'm not sure if I've typed up the notes yet but I have my notes in my notepad that I could provide'. We discussed the meeting with Andrew and what had transpired earlier that morning. Dan said to me that this is unfair and this is not a redundancy.

[77] Ms Findlay was not challenged about this evidence, and I agree with Ms Thompson (who was also not asked about this evidence) - the situation was a mess. However, its making is wholly attributable to Mr Blake. Rather than communicating to Mr Snooks his position was redundant he managed to say it was for performance reasons, leaving it to Ms Findlay to rescue the situation.

[78] Despite being a mess, the situation does not negate the possibility that Mr Snooks' termination is still a genuine redundancy.

[79] In a different set of circumstances, the evidence about the things said by Mr Blake would lead me to find the description of Mr Snooks' termination as a genuine redundancy to be a sham; however, I do not make that finding in this case.

[80] Although Mr Blake plainly held performance related concerns about Mr Snooks; those matters were never put to Mr Snooks before being referred to in the 2 August Meeting. Where this case may be differentiated from sham redundancies are the findings made with respect to s.389,

Blakes Feast unambiguously had no need for Mr Snooks' position after December 2022 as well as having cost reduction and management reasons for terminating him in August 2022. Despite Mr Blake's views about Mr Snooks' performance, the finding that Mr Snooks' position was redundant is real and substantial.

Blakes Feast consulted with Mr Snooks about his proposed redundancy. Quite understandably Mr Snooks' recollection of that meeting focusses on the performance criticisms made of him by Mr Blake; however, even so, he was asked to provide feedback about the intended decision and did so.

Consideration was given to Mr Snooks redeployment; however it did not go further than his response that he was not interested in lower level positions. In context his response was sufficient for the view to be formed by Blakes Feast that further consideration was not necessary and that it would not have been reasonable in all the circumstances for him to be redeployed.

[81] Had it not been possible to make one or several of these findings greater consideration could be given to making a finding of sham; however, the fact that each of the findings is able to be made leads to the conclusion that Mr Snooks' termination of employment was a genuine redundancy.

[82] I am satisfied for the reasons set out above that Mr Snooks' dismissal by Blakes Feast was a 'genuine redundancy' as defined, one of the initial matters requiring determination under s.396. It follows that I must dismiss Mr Snooks' unfair dismissal application, and an order doing so is issued at the same time as these reasons for decision.

[1] Exhibit A4, Statement of Evidence - Daniel Snooks, Digital Hearing Book 159; Exhibit R1, Document Seven - Letter to Applicant Confirming Redundancy 04-08-22, Digital Hearing Book 94.

[2] Exhibit R3, Respondent's Outline of Argument - Jurisdictional Objection [1] - [8], Digital Hearing Book 63.

[4] Ibid [5], Digital Hearing Book 63.

[5] Exhibit R1, Document One - Announcement to Staff, Digital Hearing Book 80.

[6] Exhibit R3, Respondent's Outline of Argument - Jurisdictional Objection [6], Digital Hearing Book 62.

[7] Ibid [5], Digital Hearing Book 63.

[8] Exhibit R2, Witness Statement of Andrew Blake [1], Digital Hearing Book 64.

[9] Exhibit R1, Letter of Proposed Redundancy to Applicant, Digital Hearing Book 90.

[10] Exhibit R1, Document Six - Applicant Response to Letter of Proposed Redundancy, Digital Hearing Book 173.

[11]Exhibit R1, Document Seven - Letter to Applicant Confirming Redundancy 04-08-22, Digital Hearing Book 94.

[14] Exhibit R3, Respondent's Outline of Argument - Jurisdictional Objection [9], Digital Hearing Book 64.

[15] Ibid [10], Digital Hearing Book 64.

[17] Ibid [11], Digital Hearing Book 64.

Mr Daniel Snooks v Blake's Feast [2023] FWC 113

At a glance

Court

Decision date

Source

Judgment (237 paragraphs)

Mr Daniel Snooks v Blake's Feast [2023] FWC 113 (16 January 2023)

Parties

Legislation Cited (1)