Fair Work Act 2009_

s.394 - Application for unfair dismissal remedy

Summary: unfair dismissal remedy - objection under s.389 of the Act - employer responded to client request under commercial arrangement.

[1] This decision concerns an application by Ms Josina van der Kuur under s.394 of the Fair Work Act 2009 ("the Act"). Ms van der Kuur is seeking an unfair dismissal remedy in relation to her dismissal by G4S Secure Solutions Australia Pty Ltd T/A G4S ("the employer").

[2] The employer provided security services at the major facility construction at Hay Point, for which Bechtel was the principal contractor.

[3] The contract with Bechtel commenced in January 2012 and the employer anticipated that the contract would come to an end in September 2015. However, it was said that the contract with Bechtel was called in earlier than anticipated, and the employer commenced a reduction in staffing levels as a consequence.

[4] The employer has objected to the Commission hearing Ms van der Kuur's application in this regard because it contends that Ms van der Kuur's employment - in view of Bechtel's instruction - came to an end because of "genuine redundancy" for the purposes of s.389 of the Act.

[5] In this regard, s.385(d) of the Act provides as follows:

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

(d) the dismissal was not a case of genuine redundancy.

[6] Section 389 of the Act provides as follows:

(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.

[7] The onus to make out the grounds under s.389 of the Act falls upon the employer.

[8] The Explanatory Memorandum to the Fair Work Bill 2008 provides some insight into the scope of meaning of a redundancy as contemplated under the Act:

1546. This clause sets out what will and will not constitute a genuine redundancy. If a dismissal is a genuine redundancy it will not be an unfair dismissal.

1547. Paragraph 389(1)(a) provides that a person's dismissal will be a case of genuine redundancy if his or her job was no longer required to be performed by anyone because of changes in the operational requirements of the employer's enterprise. Enterprise is defined in clause 12 to mean a business, activity, project or undertaking.

1548. The following are possible examples of a change in the operational requirements of an enterprise:

• a machine is now available to do the job performed by the employee;

• the employer's business is experiencing a downturn and therefore the employer only needs three people to do a particular task or duty instead of five; or

• the employer is restructuring their business to improve efficiency and the tasks done by a particular employee are distributed between several other employees and therefore the person's job no longer exists.

1549. It is intended that a dismissal will be a case of genuine redundancy even if the changes in the employer's operational requirements relate only to a part of the employer's enterprise, as this will still constitute a change to the employer's enterprise.

1550. Paragraph 389(1)(b) provides that it will not be a case of genuine redundancy if an employer does not comply with any relevant obligation in a modern award or enterprise agreement to consult about the redundancy. This does not impose an absolute obligation on an employer to consult about the redundancy but requires the employer to fulfil obligations under an award or agreement if the dismissal is to be considered a genuine redundancy.

1551. Subclause 389(2) provides that a dismissal is not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within the employer's enterprise, or within the enterprise of an associated entity of the employer (as defined in clause 12).

1552. There may be many reasons why it would not be reasonable for a person to be redeployed. For instance, the employer could be a small business employer where there is no opportunity for redeployment or there may be no positions available for which the employee has suitable qualifications or experience.

1553. Whether a dismissal is a genuine redundancy does not go to the process for selecting individual employees for redundancy. However, if the reason a person is selected for redundancy is one of the prohibited reasons covered by the general protections in Part 3-1 then the person will be able to bring an action under that Part in relation to the dismissal. [...] [My emphasis]

[9] The work performed by Ms van der Kuur was subject to the G4S Secure Solutions Proprietary (Australia) Ltd and United Voice Secure Future Greenfield Enterprise Agreement 2011 - 2015 ("the Agreement").

[10] On 27 November 2014, the employer issued a notice to its employees, which was headed "Reduction of Services from 19th of December 2014".

[11] The notice informed employees that the client had informed it that there would be a reduction in the security service requirements at the Hay Point site from 24 December 2014 and that this reduction would result in 17 full-time positions being removed from the establishment.

[12] The employer indicated that it would instigate a selection process to determine those staff who would remain on site after this date. The selection process for redundancy was forecast to be completed by 2 December 2014 and staff would be advised of the outcome of this process.

[13] On 2 December 2014, employees were advised of the outcome of the selection process (which had been based on a number of criteria). Seventeen staff were identified for redundancy, including Ms van der Kuur. However, due to an error of an administrative nature, it appears that Ms van der Kuur was not notified at the same time (on 2 December 2014) as the other relevant employees.

[14] The 17 staff were made redundant between 9 December 2014 and 23 December 2014. Six staff were made redundant as of 9 December 2014 (though due to the administrative error mentioned above, this date was amended to 10 December 2014 for Ms van der Kuur). Some eight staff were made redundant on 16 December 2014. Three staff were made redundant as of 23 December 2014.

[15] Two of the staff to be made redundant on 9 December 2014 were extended subsequently in their employment, albeit on a casual basis.

[16] Ms van der Kuur's grievance is that she was dismissed on 10 December 2014 which was 24 hours before the 12 month anniversary of her employment with the employer (with Ms van der Kuur having signed her contract on 11 December 2013 and commenced employment on 12 December 2013).

[17] As a consequence, Ms van der Kuur believed, in effect, that the employer had contrived to make her redundant at this time in order to remove a liability to pay her redundancy as well as what she referred to as an annual bonus.

[18] Ms van der Kuur supports an argument in this regard by reference to the notice of 27 November 2014, in which the employer indicated that it anticipated reducing staff positions from 24 December 2014 (and made no suggestion of doing so at an earlier time).

[19] As a consequence, in effect, Ms van der Kuur is contending that her dismissal for reasons of redundancy which took effect on 10 December 2014 was a sham in so far as the effective date of dismissal should have been on or after 24 December 2014.

[20] Ms van der Kuur otherwise contends that the selection process was not accurately or professionally applied to her and that other staff should have been made redundant before herself and that there was no reason why she should not have been invited to remain on site until 24 December 2014 (in the manner in which two other employees, who were otherwise to have been terminated on 9 December 2014, were so invited).

[21] Item 1553 of the Explanatory Memorandum, as set out earlier, states that:

Whether a dismissal is a genuine redundancy does not go to the process for selecting individual employees for redundancy […]

[22] As the Explanatory Memorandum indicates, the process of selection is not a relevant consideration to determine whether or not a dismissal constitutes a genuine redundancy. So far as Ms van der Kuur sought to agitate this concern, her claim does not challenge the employer's jurisdictional defence.

[23] The critical point of contest in this application, however, is whether the date the redundancy took effect was not the date on which the position was no longer required, or was a date fabricated to deprive Ms van der Kuur of her accruals.

[24] In respect of this matter, I firstly indicate that the employer did not nominate Ms van der Kuur on her own for redundancy on 9 December 2014. As I have indicated above, the employer identified six positions which were to be made redundant on 9 December 2014 (although two of these positions were subsequently found to be required for a period up to 24 December 2014). It would be quite an inferential step to conclude that the employer engaged in an intrigue of this scale (involving fabricating five dismissals) to cause it to not pay Ms van der Kuur her accrual for redundancy after one year's service (which is a relatively small amount).

[25] But that said, the employer's evidence was that Bechtel had advised it that its notice to staff of 27 November 2014 had been incorrect and that the services had to be withdrawn prior to its Christmas shut down on 24 December 2014 and not from that date (as the employer had indicated in its notice of 27 November 2014).

[26] As a consequence, the employer set about arranging the redundancies on the basis of the required notice periods, with Ms van der Kuur having been in the first tranche as she only required one week's notice given her shorter period of service. The longer serving employees selected for redundancy were dismissed in two further tranches (reflecting the two and three week notice periods that applied). The other employees dismissed at around the same time as Ms van der Kuur were therefore employees who, like Ms van der Kuur, had shorter periods of employment and required only one week's notice.

[27] The explanation provided by the employer in this respect was credible, and did not fall into contest.

[28] There is no finding adverse to the employer to be made in the circumstances. Ms van der Kuur may have had suspicions about the employer's motivations (given its effect on her individual circumstances), but they are not made out on the evidence.

[29] The requirements of s.389(1)(a) of the Act are discharged.

[30] There is no challenge to the employer's contention that it has satisfied the requirements of s.389(1)(b) of the Act. The employer notified the employees of the major change only a few days after Bechtel had given it notice of its changed service requirements. The employees' representative union was also notified and discussions followed.

[31] To the concern of Ms van der Kuur, the date of the redundancies was brought forward owing to the misunderstanding between Bechtel and the employer referred to above. Ms van der Kuur acknowledged in her evidence under cross examination that this changed arrangement was communicated to her.

[32] In addition to these interactions, it seems that Ms van der Kuur was also invited to attend a meeting with an HR representative to discuss the redundancy, but that meeting did not proceed. An alternative meeting with Mr Broughton was arranged, but Ms van der Kuur did not attend the meeting as scheduled owing to what she said was a neck complaint. Ms van der Kuur was also offered opportunities to speak directly with Mr Broughton about her redundancy. Mr Broughton's email to Ms van der Kuur of 3 December 2014 (which sits within Ms van der Kuur's application) sets out these various opportunities.

[33] The employer's evidence was that Ms van der Kuur had never replied to the invitation to attend the meeting in any event, though Ms van der Kuur could not recall receiving any such request. I cannot say if Ms van der Kuur's computer related problems - which she alluded to in her evidence - extended back in time to this period.

[34] This aside, Ms van der Kuur followed up matters in response to Mr Broughton's email with the employer by email (as referred to above and dated 3 December 2014). She did not agitate any concerns about the redundancy as such, but more so in relation to the adequacy of her notice period (which was promptly addressed by the employer) and whether she had access to a bonus payment.

[35] The factual matrix to this matter was not particularly complex and the context of the reduction in establishment was uncomplicated: the client (Bechtel) requested a reduction in services in accord with its commercial contract with the employer and the employer set about selecting those who were to be made redundant and the order of redundancy based on notice. There was not a great deal to explain to employees and the consultation clause in the applicable agreement was readily discharged.

[36] For the purposes of s.389(2) of the Act, the employer claimed that it had no other sites in Mackay to which it could redeploy any employees whose positions had been made redundant. The employer did have two sites in Brisbane, but neither of these sites had any vacancies.

[37] The employer's evidence is not open to challenge: it was given without any resistance from Ms van der Kuur and on the basis of the knowledge of the business by Mr John Broughton, who is the Queensland Branch Manager for the employer.

[38] As far as I gather from her evidence, Ms van der Kuur does not contend that she should have been redeployed to another position at another location (her concerns being otherwise at the time). Ms van der Kuur herself - reasonably - had no knowledge of any vacant positions in any event. That knowledge resided with the employer.

[39] There was one matter that did fall into contention and that was the subsequent availability of two casual positions for a number of shifts. The employer selected two candidates from amongst those who were made redundant in the first tranche (which included Ms van der Kuur). The employer contends that Ms van der Kuur was invited to be considered but did not respond to its messaging. Ms van der Kuur complains she did not receive any such message. The employer nominated two employees who had expressed an interest to fill the two casual positions.

[40] I do not consider this process to have been one that presents an obstacle to the employer discharging its obligation under s.389(2) of the Act as the employer acted on the information it had before it at the time, and not for any other reason.

[41] The jurisdictional objection to Ms van der Kuur's application under s.394 of the Act is made out in so far as I have found that her dismissal was a consequence of a genuine redundancy for purposes of s.389 of the Act. Because of this finding, Ms van der Kuur was not a person who was dismissed from her employment under s.385(d) of the Act, and her application under s.394 of the Act must be dismissed.

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