[2012] FWA 8677 Download Word Document FAIR WORK AUSTRALIA DECISION Fair Work Act 2009 s.394—Unfair dismissal Natalina Patti v Vincent Chrisp & Partners Pty Ltd T/A Vincent Chrisp Architects (U2012/6934) DEPUTY PRESIDENT HAMILTON MELBOURNE, 11 OCTOBER 2012 Genuine Redundancy - Jurisdictional Objection Upheld Introduction [1] On 10 April 2012 Ms Natalina Patti filed an application under s.394 of the Fair Work Act 2009 (‘the Act’) against Vincent Chrisp & Partners Pty Ltd for an unfair dismissal remedy for her dismissal on 28 March 2012. [2] The matter was conciliated and no settlement was reached. The matter was set down for arbitration before me. Pursuant to s.399 the matter was heard by hearing given the decision of the parties to cross examine witnesses. Written submissions and witness statements were filed, and the following witnesses gave evidence: Ms.Natalina Patti Mr.David Jones Ms.Julie Cockram Mr.Michael Vincent [3] I have had regard to all the submissions and evidence. Genuine Redundancy [4] The employer submits that the termination of Ms. Patti’s employment was a genuine redundancy within s.389 of the Act, which provides: “389 Meaning of genuine redundancy (1) A person’s dismissal was a case of genuine redundancy if: (a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and (b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy. (2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within: (a) the employer’s enterprise; or (b) the enterprise of an associated entity of the employer.” Section 389(1)(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 [5] Mr.Vincent, the principal of the employer, gave evidence that his business experienced a ‘severe drop off of new business’, and a reduction in income. The firm responded to that reduction in business by reviewing its operations and making changes. Because of the lack of new work the ongoing work would be ‘contract administration’ and the general drafting office staff would be ‘without work and unproductive’ 1 . He said that the applicant was one of the drafters, and was therefore made redundant along with three other drafters 2 . Ms.Cockram gave similar evidence 3 . [6] Ms.Patti gave contrary evidence. She gave evidence in particular that she was not a drafter but performed contract administration work 4 . She also alleged that her selection for redundancy was not for the above reasons but because of other reasons such as personal animosity 5 . She gave evidence that the employment of other staff such as Georgie Stewart show that the claims of the employer are false 6 . She tendered a duty statement for her position which she said supported her claims. She tendered an email from a receptionist which described a new employee as a drafter, and made a number of other allegations. She did however acknowledge that the amount of work coming across her desk and of the others made redundant was reducing 7 . [7] Both Mr.Vincent and Mr.Jones gave generally consistent evidence about the duties of Ms.Patti, to the effect that she worked primarily as a drafter not as a contract administrator, although she performed a range of duties including assisting in contract administration 8 . The term ‘drafter’ was a description of her duties rather than a formal title. She worked under the direct supervision of a Project Architect 9 . Mr.Jones, who worked with her directly, gave evidence that the work she performed relating to contract administration was to assist him and her work was vetted by him before it was sent out to others outside the business 10 . Both Mr.Vincent and Ms.Cockram said that the duty statement was an outline of the range of duties rather than a statement that she performed contract administration work 11 . Mr.Vincent’s evidence about the applicant’s duties was based on possibly less direct knowledge, but was consistent with this. Mr.Vincent and others denied that the redundancy was the result of an animosity towards the applicant, and gave descriptions of the skills and duties of other employees such as Ms.Stewart. Ms.Cockram said that the email from the receptionist was not an indication of the employee’s actual duties 12 . [8] I accept the evidence of Mr.Vincent, Ms.Cockram and Mr.Jones, and prefer their evidence to that of the applicant where it is inconsistent. I find that the applicant worked on the duties described by them as drafting duties, or work as a drafter. That work was in large measure no longer required because of the drop off in new business. I do not consider that her redundancy was the result of personal animosity or that the employer’s explanations are undermined by the employment of Ms.Stewart and others. I do not accept the allegations made by the applicant regarding that and other similar matters. I find that the requirements of s.389(1)(a) are satisfied. Section 389(1)(b) - Award Consultation Requirements [9] It is agreed that the applicant’s employment was covered by the Architect’s Award 2010, and that clause 9 of the award relevantly provides: ‘9. Consultation regarding major workplace change 9.1 Employer to notify (a) Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must notify the employees who may be affected by the proposed changes and their representatives, if any. (b) Significant effects include termination of employment; major changes in the composition, operation or size of the employer’s workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations; and the restructuring of jobs. Provided that where this award makes provision for alteration of any of these matters an alteration is deemed not to have significant effect. 9.2 Employer to discuss change (a) The employer must discuss with the employees affected and their representatives, if any, the introduction of the changes referred to in clause 9.1 , the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees and must give prompt consideration to matters raised by the employees and/or their representatives in relation to the changes. (b) The discussions must commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in clause 9.1 . (c) For the purposes of such discussion, the employer must provide in writing to the employees concerned and their representatives, if any, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees provided that no employer is required to disclose confidential information the disclosure of which would be contrary to the employer’s interests.’ [10] Mr.Vincent gave evidence about the meetings he had with employees to be made redundant, the explanations that he gave, the conversations he had with them, and the letter he gave them, and the response from those who received the letters 13 . Ms.Cockram gave evidence about an exchange of emails she had with the applicant about the redundancy in which the applicant sought and was provided with further information 14 . As the employer submitted, the applicant was advised at the meeting of 9 March 2012 between Mr.Vincent and the applicant that the employer was experiencing a downturn and a change in workflow and therefore the employer had no choice but to make some of the drafter positions redundant, and an offer of voluntary redundancy was made. Between 9 March and 23 March the applicant sought and was provided with further information about the redundancy, and the employer sought to mitigate the adverse effect of the redundancy by providing the applicant with an additional year’s service after it was requested by the applicant 15 . The applicant gave evidence that she received all information that she requested and confirmed the nature of the discussions with the employer. [11] I am satisfied that the employer complied with clause 9. Section 389(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 [12] Both Mr.Vincent and Ms.Cockram gave evidence that they examined alternative methods of reducing employee expenditure and possible redeployment and nothing in the circumstances was available because there simply was not enough work for drafters to do 16 . It is true that work as a contract administrator continued to be available. However, the evidence of Messrs Jones and Vincent set out above was that the applicant did not perform this work, but only assisted in it, and was a drafter or engaged in work described as such. They considered that she did not have the skills to perform in the job as a contract administrator 17 . The applicant disagreed. I accept the evidence of Messrs. Jones and Vincent, and prefer their evidence where it is inconsistent with that of the applicant. In the circumstances I am satisfied that the employer has met the requirements of s.389(2). Conclusion [13] I am required by s.385(d) to dismiss the application. An order to that effect is contained in PR530040 . DEPUTY PRESIDENT Appearances : Ms N Patti , the applicant Mr M Reid of Coulter Roache for the respondent Hearing details: 2012 Melbourne 5 September Final written submissions: 2012 12 September 19 September 21 September 1 Exhibit V2, paragraphs 7-12 2 Exhibit V2, paragraph 13 3 Exhibit V3, paragraphs 5-11 4 Exhibit P2, paragraphs 1, 4, 11 5 Exhibit P2, paragraphs 2 6 Exhibit P2, paragraph 10 7 PN1163 8 PN288-289; PN973-1006; PN1059-1061 9 Witness Statement of Michael Vincent, paragraph 19; Witness statement of David Jones, paragraph 4. 10 Exhibit V2, paragraph 6; Exhibit V4, paragraphs 6-8 11 PN785-791; PN822-824; PN893-898; PN1056 12 PN587 13 Exhibit V2, paragraphs 15-18 14 Exhibit V2, paragraph 21 15 Exhibit V1, paragraphs 14-18 16 Exhibit V2 paragraphs 7-11; Exhibit V3 paragraphs 7-18 17 Exhibit V2, paragraph 6; Exhibit V4, paragraphs 6-8 Printed by authority of the Commonwealth Government Printer <Price code C, PR530039>