Sargeant v McAdam’s Lane Pty Ltd [2016] FWC 2644 (28 April 2016) [2016] FWC 2644 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.394 —Unfair dismissal Christopher Sargeant v McAdam’s Lane Pty Ltd T/A Terindah Estate (U2015/16675) VICE PRESIDENT WATSON MELBOURNE, 28 APRIL 2016 Application for relief from unfair dismissal – Whether dismissal a case of genuine redundancy – Fair Work Act 2009 , ss. 385 , 389 , 394 and 396 . [1] This decision is an amended version of a decision given on transcript on 19 April 2016 in relation to an unfair dismissal application under s.394 of the Fair Work Act 2009 (the Act). The application was made by Mr Christopher Sargeant in relation to the termination of his employment in November 2015 by McAdams Lane Pty Ltd, trading as Terindah Estate. [2] Various issues have been raised in the proceedings and pursuant to s.396 of the Act. I am required to determine first, the question of whether the termination was a case of genuine redundancy before considering other matters that might arise, including the merits of the termination. It is clear, pursuant to s.385 of the Act, that a dismissal on account of a genuine redundancy is not an unfair dismissal. In that regard I refer to the definition of genuine redundancy in s.389 of the Act. [3] That definition has a number of elements and it is necessary to consider the evidence in relation to each of those matters. The first element is whether 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. The evidence before me establishes that the decision to terminate Mr Sargeant's employment was made by Mr Peter Slattery, Ms Cate Slattery and Mr Joshua Slattery in a meeting in November 2015, and it was communicated to Mr Sargeant at a meeting on 12 November 2015 at which Mr Sargeant was handed his letter of termination. [4] That letter states that the termination was by reason of redundancy. It states that the decision is not a reflection of Mr Sargeant's performance and, amongst other things, that the employer had been unable to find an alternative position within the enterprise and any associated enterprises. [5] The evidence establishes to my satisfaction that the reason for that decision is as stated in the evidence of the decision makers, particularly Mr Joshua Slattery's statement and Ms Cate Slattery's statement, and that because of operational reasons it was decided not to have a position of full-time winemaker/wine manager, and to have the wine produced in an alternative manner. That appears clearly to be the reasons for the decision to terminate, and is supported by evidence as to the alternative arrangements that have established since then, whereby the functions of winemaking have been dispersed to other employees and Mr John Durham who has been engaged on a contract basis one day per week. [6] In all of the circumstances, I am satisfied that the employer no longer required a full-time winemaker/wine manager job to be performed by anyone. That position was eliminated within the organisation of the employer's business, and the factor set out in s.389(1)(a) is established on the evidence before me. [7] The next factor is whether the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy. It is not contended that Mr Sargeant's employment was subject to a modern award. I have considered the terms of the Wine Industry Award and the classifications therein, and that conclusion would appear to me to be a correct one. The Wine Industry Award applies to lower classifications of employees than the very senior role that Mr Sargeant held. [8] However, if there were obligations to consult, I note the meeting held on 15 June 2015, which discussed both performance issues and business issues, including the identification of options for an alternative contractual arrangement. Those matters were discussed. However, it appears that further discussions for one reason or another did not occur. The options were at least floated and there were opportunities for discussions about those matters that in my view are likely to satisfy any award requirements regarding consultation. [9] The next consideration I am required to consider for the purposes of the definition of genuine redundancy, is whether it would have been reasonable in all the circumstances for Mr Sargeant to be redeployed within the employer's enterprise. In other words, was it reasonable that he be employed in a different position to the one that was abolished as part of the restructure. On the evidence before me, I find that there was no such full-time position. There were prospects of other positions but at the time of termination there was no decision as to what positions may or may not have arisen. Ultimately it appears that the high-end winemaking function is not filled by an employee, but is filled by a contractor on a one day per week, on average, basis. [10] I have considered all of the evidence in relation to the changes to the structure of the business, and I am not able to find that it would have been reasonable to redeploy Mr Sargeant in another position within the establishment. [11] I make those findings on the evidence before the Commission and as a result of those findings, it follows that the dismissal of Mr Sargeant was a case of genuine redundancy within the definition under s.389 of the Act. As a genuine redundancy is not an unfair dismissal, it is not necessary to consider any other matters raised by the application. On the basis of my finding that the dismissal was a case of genuine redundancy, I determinate that the application should be dismissed. VICE PRESIDENT Appearances : Mr Christopher Sargeant on his own behalf. Mr M. Biviano of counsel, with Ms A. Quirk, on behalf of McAdams Lane Pty Ltd, trading as Terindah Estate. Hearing details: 2016. Melbourne. 19 April. Final written submissions: Mr Christopher Sargeant on 14 March and 4 April 2016. McAdams Lane Pty Ltd, trading as Terindah Estate, on 7 March and 4 April 2016. Printed by authority of the Commonwealth Government Printer <Price code A, PR579498>