[2012] FWA 2585
FAIR WORK AUSTRALIA
DECISION
Fair Work Act 2009
s.394—Unfair dismissal
Carole Groves
v
PlayRight Australia Pty Ltd
(U2011/8362)
COMMISSIONER WILLIAMS
PERTH, 29 MARCH 2012
Termination of employment - genuine redundancy.
[1]
This matter involves an application made by Ms Carole Groves under section 394 of
the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The Respondent employer is
PlayRight Australia Pty Ltd (PlayRight).
[2]
The application was the subject of a conciliation conference with a Fair Work
Australia Conciliator however the matter was not settled and has been referred to myself for
determination.
Background
[3]
PlayRight Australia Pty Ltd are specialists in children's playground design, and
provide services such as:
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[4]
Playground compliance audit and safety inspections
Playground safety training
Playground safety inspection tool kits
Park facility maintenance and repairs
Park and playground management software
"Sudden Impact" Playground Surface Impact Testing
All aspects of playground consultancy and advice
The business has two directors Ms Migas and Mr Hampson.
[5]
Ms Migas is a Trainer in the Accredited Playground Safety Inspector’s Course and
SmartRisk Re-accreditation Course. Ms Migas provides training through the TAFE
network and PlayRight provides in-house training courses for organisations such as local
government authorities and childcare centres.
[6]
PlayRight employ less than 15 employees and at the time of the Applicant’s dismissal
had approximately 4 employees.
[7]
Ms Groves was employed by PlayRight in 2007 originally with the title of
Administrator however during 2010 this was changed to Training and Events Coordinator. Ms
Groves was dismissed from her employment in May 2011.
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[8]
At the hearing Ms Groves gave evidence on her own behalf and also called evidence
from Mr Glen Williams who had also been employed with the Respondent. Evidence for the
Respondent was given by Ms Migas.
Submissions and evidence
The Applicant
[9]
Ms Groves’ evidence was that at the time of her dismissal her responsibilities included
advertising and organising the playground safety training courses conducted by PlayRight
throughout Australia and taking appropriate follow-up action after these courses and assisting
in preparations for conferences.
[10] Her evidence is that she was advised by PlayRight that they would be reducing the
number of training courses and there would be no more conferences to arrange and in addition
that a junior was all that was required to do the filing and data entry and consequently her
hours would be reduced immediately after Easter to a five-day fortnight and her employment
would end on Friday, 27 May 2011.
[11] Ms Groves says that the nub of her complaint is that most aspects of her job still exist.
The business continues to run advertising for the playground safety training courses. Ms
Groves complains that she was given no opportunity to discuss a reduction in hours if the
business considered the work required less hours. The business had no reason to complain nor
had they about her performance and she had at all times acted in a professional manner.
[12] There had also been ongoing concern she had, since early 2008, about the late
payment of her superannuation contributions by Play Right and this issue indeed arose some
two weeks prior to her dismissal.
[13] Her evidence was that leading up to the time of her dismissal there were still
significant registrations for future training courses to be held later in the year.
[14] She had previously been involved in organising various conferences and events and in
her view the number of these conferences and exhibitions that Play Right considered
sponsoring continued to grow with Play Right sending expressions of interest to a number of
organisations to this end.
[15] Ms Groves’ evidence was that the administrative work she had been doing still needs
to be done.
[16] The evidence of Mr Williams was that up until the time he left in August 2011 there
appeared to be numerous bookings for future safety training courses on the work schedule
whiteboard for the balance of the year. He conceded however he was not able to say whether
these bookings he could see on the white board were potential clients or whether they were
clients who had confirmed their attendance at future training courses.
[17] Ms Groves submits that her position was not truly redundant and that she should have
been given an opportunity to work less hours if that was necessary.
The Respondent
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[2012] FWA 2585
[18]
PlayRight objects to the application submitting that:
 the Respondent is a Family Trust and so it is unclear whether it is a National System
Employer;
 the dismissal was a genuine redundancy for operational reasons because the position
was unsustainable and no longer required;
 there were no redeployment options within the business; and
 the dismissal was in any event fair.
[19]
Evidence was given by Ms Migas in support of all the last three of these points.
Consideration
[20] From all the materials provided to the Tribunal, and in any event it does not seem to be
disputed, the identity of the Respondent employer is PlayRight Australia Pty Ltd. The
evidence of Ms Migas1 was that the employer was PlayRight Australia Pty Ltd as trustee for
the Amy and Law Family Trust. Accepting this I am satisfied that the Respondent is a
National System Employer and so there is jurisdiction for the Applicant to have made this
application.
[21]
Section 385 below prescribes what is an unfair dismissal:
385 What is an unfair dismissal
A person has been unfairly dismissed if FWA is satisfied that:
(a) the person has been dismissed; and
(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.
Note: For the definition of consistent with the Small Business Fair Dismissal Code:
see section 388.
[22]
Section 389 of the Act prescribes what genuine redundancy means as follows:
389 Meaning of genuine redundancy
(1) A person’s dismissal was a case of genuine redundancy if:
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[2012] FWA 2585
(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:
(a) the employer’s enterprise; or
(b) the enterprise of an associated entity of the employer.
[23] Section 396 requires that this issue be determined before the Tribunal considers the
merits of the application.
396 Initial matters to be considered before merits
FWA must decide the following matters relating to an application for an order under
Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection
394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair
Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.
[24] The central issue to be determined here is whether or not the dismissal of Ms Groves
was a genuine redundancy within the terms of section 389. If it was the dismissal was not
unfair and the application must be dismissed.
[25] The evidence of Ms Migas was that she met with Ms Groves on 14 April 2011 and she
advised her of the reduction in training courses. In the four or five months prior to this
PlayRight had only conducted 2 training courses whereas for a full year they would normally
have conducted between 12 and 16. Ms Migas says that at the time of the dismissal there were
projected courses that might possibly be held but there was only one confirmed training
course for the next six months. In addition there were no courses at all booked for 2012 at that
stage.
[26] The difficulties in 2011 followed a significant reduction in activity in 2010 which was
responded to by the staff at that time generally reducing their hours. Ms Groves’ position was
only able to be maintained as a full-time position at that time because of a one-off grant from
Parks and Leisure Australia of $35,000.
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[2012] FWA 2585
[27] At the time of the dismissal Ms Migas accepts that Ms Groves was still doing some
work but the number of hours that would have been required of her then and for the future
was limited.
[28] Ms Migas evidence was that at the time of the dismissal she believed she would be
able herself to absorb the work that Ms Groves was doing because of the limited amount of
training confirmed for the future.
[29] In terms of redeploying the Applicant, her evidence was that there was a Design Sales
position that was advertised which was a more junior role but Ms Groves had not expressed
any interest in regard to doing that job nor did she apply for it. In any event this is a position
that is financially assisted by another business Kompan which is a playground manufacturer
that PlayRight act as distributor for. Kompan did the interviewing for that position and
financially supported that position.
[30] Ms Migas agrees that at the time of the discussions Ms Groves offered to do the filing
to stay employed however Ms Migas says this amounted to only a few hours a fortnight. Her
evidence was that Ms Groves’ position was no longer required and indeed she has not been
replaced. Ms Migas accepts that some small amount of work that Ms Groves would have
normally done remains and she herself is doing that work.
[31] Her evidence was that Mr Williams’ assessment of future bookings was simply wrong
and that in his position he would not be aware of what numbers they had for each future
booking and whether or not those numbers were confirmed nor would he know whether those
courses were actually conducted.
[32] The evidence is that at the time of dismissal there were a total of four employees in
addition to the Applicant, being a Sales and Design Consultant, a Project Coordinator, an
Installer and an Installer Inspector.
[33] By comparison the evidence of Ms Groves as to the amount of business for the future
is necessarily limited given her position in the business however Ms Groves in her own
evidence seems to acknowledge that there may have been a need for her hours to reduce if the
amount of training was to be reduced. She concedes she had no knowledge of the financial
situation of the Respondent.
[34] Considering all of this I accept the evidence of Ms Migas as to the financial difficulty
the Respondent was experiencing and the significant reduction at the time the decision was
made to dismiss the Applicant in bookings for future training courses.
[35] Whilst I also accept the evidence of Ms Groves that some of the duties that she
undertook continued to be done after her dismissal the evidence is these limited duties were
taken on by Ms Migas herself.
[36] It is a decision for the employer as to how it staffs its business and also how it wishes
to distribute the work to be done between those staff. It is not unusual for an employee’s
position to become redundant because an employer decides to redistribute the duties
previously done by that employee to other employees remaining in the business. Employers
are likely to take this step where there has been a reduction in the amount of work required to
be done in a particular position. Such was the situation here. Unfortunately for Ms Groves the
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downturn in the overall demand for the Respondent’s services meant there had been a decline
in the work she had been doing. The Employer, being conscious of the recent past reduction
in training courses they had undertaken and of the reduced bookings for the future, decided
that Ms Groves’ job was no longer required. In this situation there was no requirement for the
Employer to keep Ms Groves employed on reduced hours as she suggested.
[37] There was no complaint at all about Ms Groves’ performance. Ms Groves’ redundancy
was through no fault of her own.
[38] Turning to the issue of Ms Groves’ concern about the delayed payment of her
superannuation contributions I am not satisfied that this was in fact the reason for the
dismissal at all. There is no evidence supporting that assertion.
[39] Consequently I do accept that PlayRight Australia Pty Ltd no longer required Ms
Groves’ job to be performed by anyone because of changes in the operational requirements of
the employer's enterprise.
[40] In terms of section 389(1)(b) there is no suggestion that there is an enterprise
agreement that applies to the employer further the Respondent is unsure as to whether or not
there is a modern award that applies to the employer.
[41] Whilst no submissions were made on this point in my view the only possible modern
award that might apply to the employment of Ms Groves would be the Miscellaneous Award
2010 [MA000104] (Award).
[42] If indeed this Award did apply (which is by no means clear) then the Respondent had
an obligation to consult about the redundancy. Considering the terms of Clause 8–
Consultation Regarding Major Workplace Change if indeed this Award does apply I am
satisfied that the Respondent has substantially complied with these consultation obligations.
[43] In terms of section 389(2) I accept it would not have been reasonable in the
circumstances for Ms Groves to have been redeployed within the enterprise. There were only
four other employees engaged by the Respondent at the time and there simply were no other
vacant positions.
[44] Accordingly I determine that the dismissal of Ms Groves was a case of genuine
redundancy within the meaning of section 389. Given this finding then the dismissal of Ms
Groves was not unfair and so this application must be dismissed.
[45]
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An order to that effect will issue in conjunction with this decision.
[2012] FWA 2585
COMMISSIONER
Appearances:
C Groves, on her own behalf.
G. von Waidkuns-Velazquez, Solicitor for the Respondent.
Hearing details:
2012.
Perth:
January 4.
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