UNFAIR DISMISSAL APPLICATION

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2023 WAIRC 00097

DELIVERED : friday, 17 February 2023

FILE NO. : U 23 OF 2021

Applicant

AND

Nullagine Community Resource Centre Incorporated

Respondent

CatchWords : Unfair Dismissal; genuine redundancy; dismissed employee replaced

Legislation : Industrial Relations Act 1979 (WA)

  Minimum Conditions of Employment Act 1993 (WA)

Result : Unfair dismissal upheld and order issued

Representation:

Applicant : Mrs G Tawha (in person)

Respondent : Mr A Xavier

Case(s) referred to in reasons:

Bogunovich v Bayside Western Australia Pty Ltd [No 2] (1998) 79 WAIG 8

Gilmore v Cecil Bros., FDR Pty Ltd and Cecil Bros Pty Limited (1996) 76 WAIG 4434

Jones v Department of Energy and Minerals [1995] IRCA 292; (1995) 60 IR 304

Manning v Huntingdale Veterinary Clinic (1998) 78 WAIG 1107

Quality Bakers of Australia Ltd v Goulding [1995] IRCA 285; (1995) 60 IR 327

Sealanes (1985) Pty Ltd v Foley and Buktenica [2006] WAIRC 04110; (2006) 86 WAIG 1239

Reasons for Decision

1         Mrs Gayle Tawha (the applicant) commenced working at Nullagine Community Resource Centre Incorporated (CRC) in March 2020 in the role of Coordinator.  On 26 February 2021 Mrs Tawha was informed that her employment was to be terminated effective at the same day.  Mrs Tawha was informed by the CRC that her position was no longer required due to change in circumstances.

2         The applicant claims her termination was unfair because it was not a genuine redundancy and seeks compensation.

3         The CRC contends that the applicant’s termination was not unfair because the applicant was made redundant as the applicant’s position was no longer required.  The CRC asserts that it has paid the applicant the appropriate one week of salary in lieu of the required notice.

Questions to Decide

4         The first question I must decide is whether the reason the respondent decided to terminate the applicant was a genuine redundancy.

5         If the answer to this question is yes, then I must decide if the respondent implemented its decision to make the applicant redundant fairly.

Background and Facts

6         The applicant’s evidence was given by the applicant herself, her son and employee of the CRC Mr TeArai Tawha and Mr Fraser Brennan.  The respondent’s evidence was given by Mr Jon Payne (Chair of the CRC) and Mr Alexander Xavier who also represented the respondent in these proceedings.

7         It was Mr Brennan’s evidence that he undertook the role of the CRC Coordinator from sometime in 2018.  On Mr Brennan’s departure from the organisation Mrs Tawha who had been working for the CRC in a different role took over the Coordinator role.  In December 2020 Mr Brennan was informed by a member or members of the CRC Committee of Management that the organisation’s relationship with the community had deteriorated since his departure and that the CRC wished to engage him once again.

8         The following message exchange between Mr Brennan and Mr Xavier occurred on 11 December 2020:

9         Mr Brennan’s evidence is that the duties he undertook on his second engagement in the position of Coordinator were the same as those he undertook on the first engagement in this role.  Mr Brennan’s evidence is that the duties he undertook were the same as those of Mrs Tawha.

10      Following one week’s employment at the CRC, Mr Brennan concluded that the explanation for the deterioration of the CRC’s relationship with the community, statements concerning Mrs Tawha’s performance in the role of Coordinator and the circumstances of Mrs Tawha’s dismissal by members of the CRC Committee were not accurate and that he had been misled.  Mr Brennan resigned from his employment with the CRC shortly after commencing with the organisation.

11      Mr Brennan gave evidence that members of the CRC Committee and office holders regularly discussed their views and the circumstances of Mrs Tawha’s employment and dismissal in public venues where their comments could be heard by other people.

12      Mr TeArai Tawha was employed by the CRC in the role of Assistant Coordinator and Centrelink agent from July 2020.  Mr Tawha’s employment concluded in April 2021.  Mr Tawha gave evidence related to the attendance at the CRC office by two members of the Committee, the Chairperson Mr Jon Payne and the Secretary Mrs Mary Palmer and the exchanges that took place with Mrs Tawha and himself.

13      Mrs Tawha gave evidence that she received a letter dated 26 February 2021 that informed her that the CRC had decided to terminate her employment and provided the following reasons for the decision:

We have decided to terminate your employment as at 23/02/2021 for the following reasons:

• The operational requirements of this organisation have changed due to circumstances outside of our control, and your position within the organisation is no longer supported.
• The business currently does not currently [sic] provide the services you were engaged to deliver to the above circumstance and therefore you have become redundant.

14      Mrs Tawha also submitted the record of the CRC Special Committee meeting on 5 February 2021 that contained the following extract concerning Mrs Tawha’s employment:

Committee discussed and resolved to keep one staff member and release the other based on the current financial situation and the need to provide continuity of Centrelink services.  The operational requirements of the organisation has changed, and it can no longer support two employees for termination of Gayle Tawha, her position is now redundant and unfunded and therefore we cannot support it going into the future.

15      Mrs Tawha described the duties she undertook in the role of Coordinator.  I find that the duties undertaken by Mrs Tawha are the same as those undertaken by Mr Brennan.

16      Mr Jon Payne’s evidence is that the CRC Committee decided that the organisation could no longer maintain employing two employees because a source of funding had ceased.  Mr Payne explained that it was decided that of the two employees it ought to be Mrs Tawha’s employment that was terminated as her position was redundant and unfunded.

17      Mr Payne’s evidence is that he was largely distracted from the operations of the CRC and the engagement in the decision making was diminished because of several personal matters that required his attention.  Mr Payne’s evidence was that the decisions were made by five committee members and therefore, where three committee members were of the same view, his view did not have an impact upon the decision.

18      Mr Xavier gave evidence that the messages exchanged which are set out above at paragraph [8] were private between Mr Brennan and Mr Xavier.  Under cross examination it was agreed by Mr Xavier that he held the office of Vice Chair and resigned from this office on 10 June 2020.

Was There a Genuine Redundancy and Was The Dismissal Unfair?

19      In claims of unfair dismissal made under s 29 of the Industrial Relations Act 1979 (WA) (IR Act), the ultimate issue for determination is whether the dismissal of an employee was harsh, oppressive or unfair.  The question of whether a termination of employment occurred because of genuine redundancy is not determinative of this ultimate issue: Sealanes (1985) Pty Ltd v Foley and Buktenica [2006] WAIRC 04110; (2006) 86 WAIG 1239 at [31].  However, where the employer defends the claim on the basis that dismissal was the result of a justifiable reason based on genuine redundancy, and it is disputed, it will ordinarily be necessary for the Commission to decide whether the termination was the result of a genuine redundancy.

20      In Sealanes, the Full Bench described what a redundancy is by reference to statements by Beazley J in Quality Bakers of Australia Ltd v Goulding [1995] IRCA 285; (1995) 60 IR 327 and Ryan J in Jones v Department of Energy and Minerals [1995] IRCA 292; (1995) 60 IR 304 to the effect that:

(a) a redundancy arises where an employer has labour in excess of the requirements of the business or where the employer no longer wishes to have a particular job performed or where the employer wishes to amalgamate jobs;

(b) it is not necessary for the work to have disappeared altogether;

(c) organisational restructuring may result in a position being abolished and the functions of some of them being given to another or split amongst others;

(d) a redundancy may occur where an employer rearranges their organisational structure by breaking up the functions attached to a single position and distributes them to the holders of other positions, including newly created positions; and

(e) the critical question is whether the holder of the former position has, after the reorganisation, any duties to discharge.  If not, their position has become redundant.

21      Whether a dismissal has occurred because of redundancy involves findings of fact by reference to the elements set out in [20] above.  The relevant considerations are whether the decision by the respondent was genuine and not capricious nor arbitrary.

22      Further, a failure to comply with the mandatory requirements under s 41 of the Minimum Conditions of Employment Act 1993 (WA) (MCE Act) is a factor to be taken into account in deciding whether a dismissal is unfair: Gilmore v Cecil Bros., FDR Pty Ltd and Cecil Bros Pty Limited (1996) 76 WAIG 4434, per Sharkey P at 4445.  Section 41 of the MCE Act requires that where an employer has decided to make an employee redundant, the employee is entitled to be informed by the employer as soon as reasonably practicable after the decision has been made and discuss the likely effects of the redundancy and measures that might be taken to avoid or minimise its effect.

23      The applicant claims that prior to her being informed that her employment was terminated the respondent engaged in recruiting another person to replace her once her employment had been terminated.  I find that the evidence is that the CRC had initiated the recruitment of Mr Brennan to take on the position of Coordinator, held by Mrs Tawha, once her employment had been terminated.

24      I find that the role of Coordinator continued to exist and had not been changed or modified in anyway.  I find that the CRC did not abolish the role of Coordinator, rather it engaged another person to undertake the role immediately after terminating Mrs Tawha’s employment.  I find that the termination of Mrs Tawha’s employment was not a genuine redundancy.

25      Evidence and submissions were made on the reasons for the termination of Mrs Tawha’s employment.  However, considering the respondent’s defence that Mrs Tawha’s employment was ended because of a genuine redundancy I need not make findings as to the reasons for the termination.  It is sufficient to find that there was not a genuine redundancy and therefore Mrs Tawha’s dismissal was unfair.

26      Whilst it is not necessary to consider the respondent’s process of terminating Mrs Tawha’s employment, I would note that I would find that the respondent conducted the termination process unfairly and harshly.   The respondent did not provide Mrs Tawha an opportunity to consider the reasons nor any alternate options.  Mrs Tawha was not consulted as required by the MCE Act.  When communicating the decision to terminate her employment, the respondent representatives conducted themselves in an abrasive and harsh manner.  The respondent contrived to use the rationale of a redundancy disingenuously to terminate Mrs Tawha’s employment.  Therefore, even if the redundancy had been genuine the respondent’s conduct results in the dismissal being unfair.

27      It is clear from the evidence given during the course of these proceedings that it is not practicable to reinstate the applicant.  On the evidence, the Commission is satisfied that the applicant has suffered loss as a result of this unfair dismissal.  The Commission therefore ought to fix compensation.

28      The principles in relation to the assessment of compensation for unfair dismissal claims are set out in Bogunovich v Bayside Western Australia Pty Ltd [No 2] (1998) 79 WAIG 8.  The award should compensate the unfairly dismissed employee, as far as possible, for the ‘…loss or injury caused by the dismissal’.  An employee should be awarded a sum that they would have earned had the employment continued.  An unfairly dismissed employee is to be compensated to the fullest extent of their loss but the calculation of loss must not be arbitrary: Manning v Huntingdale Veterinary Clinic (1998) 78 WAIG 1107.

29      Mrs Tawha’s employment contract was ongoing, and she expected to have had continued employment.  There is no evidence of any circumstances that would have disturbed this prospect.  Mrs Tawha’s payslips evidence that she earned $40.64 per hour and worked 37.5 hours per week.

30      Consistent with the principles in Bogunovich and Manning an unfairly dismissed employee should be compensated as fully as possible for loss established on the evidence.  A cap of the equivalent amount of six months’ salary on any compensation that may be awarded by the Commission is prescribed by s 23A(8) of the IR Act.  Therefore, the maximum that I may order is $39,750.95.  I propose to make this order.