Alexander Moore v OurProperty.Com.Au Pty Ltd [2024] FWC 2066

1 Fair Work Act 2009 s.394—Unfair dismissal Alexander Moore v OurProperty.Com.Au Pty Ltd (U2023/12527) DEPUTY PRESIDENT LAKE BRISBANE, 16 SEPTEMBER 2024 Application for an unfair dismissal remedy – jurisdictional objection – genuine redundancy – jurisdictional objection upheld – application dismissed. [1] Mr Alexander Moore (the Applicant) made an application to the Fair Work Commission (the Commission) seeking a remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) stating that he was unfairly dismissed from his employment with OurProperty.com.au Pty Ltd on 24 November 2023 (the Respondent). [2] A conciliation was held on 22 March 2024 and the Respondent was not in attendance. The matter was listed for an in-person hearing on 22 April 2024. The Applicant was represented by Mr Miles Heffernan, Director of Systems and Licensing at Supportah, and the Respondent was represented by Mr Ben Cooper, Head of Advocacy and Compliance at Mapien. I granted permission for both parties to be represented under s.596 of the Act as there were no contention between the parties. [3] Section 396 of the Act requires satisfaction of four matters before considering the merits. I am satisfied that the Applicant made his application within the 21-day period required by s.394(2) of the Act and earned less than the high-income threshold. The Respondent raised a jurisdictional objection that the Applicant was made genuinely redundant and, in the alternative, complied with the Small Business Fair Dismissal Code. The jurisdictional objections will be considered before determining whether the merits of the matter. Is there a genuine redundancy under s.389(1) of the Act? [4] In Helensburgh Coal Pty Ltd v Bartley [2024] FCAFC 45, the Full Court of the Federal Court made it clear that if the factors of genuine redundancy are established, there is no unfair dismissal even if the redundancy has aspects of being harsh, unjust and unreasonable. There can be little doubt that s 389 of the FW Act—and, more broadly, the significance of “genuine redundancy” to s 385(d)—was intended to narrow the circumstances in which an employee might be said to have been “unfairly dismissed”; and, thereby, to afford employers a defence in circumstances involving dismissals for operational reasons (as opposed to reasons of conduct or [2024] FWC 2066 DECISION -- 1 of 7 -- [2024] FWC 2066 2 capacity). A dismissal that is a “case of genuine redundancy” is immune from relief under Pt 3‑2. That is so even if it might unambiguously qualify as “harsh, unjust or unreasonable”.1 [5] Therefore, I consider whether the requirements of genuine redundancy are met regardless of whether it may be qualified as harsh, unjust or unreasonable. The requirements of genuine redundancy prescribed under s.389 of the Act are: 1. The role was no longer required to be performed by anyone because of operational requirements of the employer’s enterprise.2 2. Consultation if prescribed under Enterprise Agreement or applicable Award.3 3. Offer of redeployment if it was reasonable in all the circumstances4 1. Did the Applicant’s employer no longer require the Applicant’s job to be performed by anyone because of operational requirements of the employer’s enterprise? [6] The Commission is not required to undertake an inquiry into the reasonableness of the changes in operational requirements. It just needs to be established. A case of genuine redundancy may arise if a dismissal is the consequence of changes in the operational requirements of an employer’s enterprise. The FW Act does not contemplate any inquiry into the reasonableness of such changes, neither “in all [of] the circumstances” or at all. Subject to s 389(1)(b) and 389(2), any change in operational requirements will suffice.5 [7] ‘Operational requirements’ is a broad term which encompasses a wide range of factors such as consideration of the present performance of the business, the state of the market in which the business operates, steps to improve efficiency with new processes/equipment/skills, arranging labour to be used more productively or the application of good management to the business. [8] In Ulan Coal Mines Limited v Howarth and others [2010] FWAFB 3488, the Full Bench considered redundancy where the job as a collection of “functions, duties and responsibilities” becomes no longer required. “[17] It is noted that the reference in the statutory expression is to a person’s “job” no longer being required to be performed. As Ryan J observed in Jones v Department of Energy and Minerals (1995) 60 IR 304 a job involves “a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employees’ organisation, to a particular employee” (at p. 308). His Honour in that case considered a set of circumstances where an employer might rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly-created positions. In these circumstances, it was said that: ‘What is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the re-organisation, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position becomes redundant…’ (at p.308)” This does not mean that if any aspect of the employee’s duties is still to be performed by somebody, he or she cannot be redundant (see Dibb v Commissioner of Taxation (2004) FCR 388 at 404-405). The examples given in the Explanatory Memorandum illustrate circumstances -- 2 of 7 -- [2024] FWC 2066 3 where tasks and duties of a particular employee continue to be performed by other employees but nevertheless the “job” of that employee no longer exists. [9] If there is no longer any function or duty to be performed by an employee, his or her position becomes redundant even where aspects of that employee’s duties are still being performed by other employees.6 The consideration is whether the previous job has survived the restructure or downsizing, rather than a question as to whether the duties have survived in some form. 7 [10] I have considered all the submissions and materials in this matter. The evidence was unorganised despite both parties having representation. There were numerous issues raised which did not appear to be in the scope of genuine redundancy or unfair dismissal presented at hearing. [11] I note the following timeline of events that were relevant in determining this matter: a) The Respondent is a software development company within a start-up phase. It does not have many employees on this project and many of its roles are outsourced. The Applicant was initially engaged as a contractor. The Applicant was employed from November 2021. The Applicant acknowledged that he was not employed as a technical expert, but was brought in to deliver on ‘business processes.’8 b) The Applicant’s title did not have much significance – whether he was called a Chief Operating Officer, Chief Executive Officer, or Administrative Manager. It did not matter in the grand scheme of things in terms of what his key duties were. It appeared that the Applicant’s involvement with the Respondent was to raise money, rather than a role which involved a set list of duties. In the Applicant’s statement, the only clear role of the Applicant was attracting investors and venture capital raising.9 The Applicant fails to highlight any duties besides this in his own material, except through oral evidence. c) The Chief Operating Officer (Operations Manager) was the following which became a part of the Applicant’s role: “To lead and direct online business operations of OurProperty, enhancing the organisation’s capacity, efficiency and capabilities across the sales, marketing, onboarding and customer success teams by utilising the latest technologies and resources to automate and monitor key business functions and processes. To build capability in each of these respective areas with a view to ongoing scalability and profitability of the company”10 d) The Applicant made questionable choices when delivering business processes. The Respondent (with support of the Applicant) outsourced many of its organisation’s capacity: a. Sales roles such as Brand Manager and National Sales Manager no longer existed from December 2018. -- 3 of 7 -- [2024] FWC 2066 4 b. The software development team were let go and outsourced to India. c. The Applicant engaged Sarah-Jane Young from SJ Consulting on 6 August 2020. SJ Consulting was engaged to oversee planning, development, execution and training of all marketing, advertising and CRM initiatives. This consulting arrangement was not executed.11 d. The Applicant engaged Jemmeson Fisher Accounting Pty Ltd to undertake accounting, bookkeeping, WorkCover, taxes and approve invoices. e) The Respondent was sourcing investment funding from Ventureon. The Applicant was not in the shareholder agreement when funding was in the process of being secured on 20 September 2023. The Applicant was subsequently made redundant on 24 November 2023. Ventureon is the company that now does marketing and financing for the Respondent. [12] Shareholders disputes, intellectual property claims and issues surrounding the Corporations Act 2001 (Cth) are not issues that I am required to determine, and this should be dealt with in the appropriate jurisdiction. The only issue before me that is relevant is to determine whether Mr Moore was made genuinely redundant. [13] The Respondent states that COO role was performed by Mr Anthony Fisher while the Applicant states that Mr Fisher was the Chief Projects Officer.12 Regardless of the name of the role, it was clear that Mr Moore’s main duty was raising capital. The COO, or whatever the title may be, was a placeholder to attract investment. [14] I am satisfied that the operational requirements were established by the Respondent for redundancy once the Respondent secured funding from Ventureon. As part of securing funding, the Respondent’s focus shifted to the more technical aspects of the software. These were skills that the Applicant acknowledged he did not have. [15] The Applicant was paid in consideration for his responsibilities in raising funds for the Respondent with Ventureon, earning a salary of $120,000 per year, and I found this to be his key duty. There were no other duties that as part of his role as a COO or equivalent in this aspect to be performed by someone else. The other duties that the Applicant was doing were approving expenses and invoices, along with hiring people in sales. [16] Mr Burstow was contracted to be the Chief Information Officer with the Respondent and absorbed the duties of the Applicant. Unlike the Applicant, Mr Burstow was highly versed in software development, while also approving expenses and invoices. [17] Although the Applicant may feel this is less than the company net worth, and feels ‘short changed’, the financing and sales which were previously done by the Applicant have been outsourced to Ventureon, and some of those duties are now performed by Mr Burstow. The operational requirements have been established. -- 4 of 7 -- [2024] FWC 2066 5 2. Did the Respondent comply with any obligations in a modern award or enterprise agreement that applied to the employment to consult about redundancy? [18] The obligation on an employer to consult about redundancy only arises when a modern award or enterprise agreement applies to an employee and that modern award or enterprise agreement contains requirements to consult about redundancy. There is no legislative requirement to consult about the redundancy before a decision is made to make an employee redundant. [19] The Applicant contests that he was not an Administrative Manager and was a COO. In the alternative, if he was found to be an Administrative Manager, he would fall under the Clerks – Private Sector Award 2020. [20] I did not find the role of the Applicant to be clerical in nature although he may have done invoicing and billing from time to time as part of his main duties in securing investment. Clerical work mainly involves the following: “clerical work includes recording, typing, calculating, invoicing, billing, charging, checking, receiving and answering calls, cash handling, operating a telephone switchboard, attending a reception desk and administrative duties of a clerical nature” [21] Therefore, I am satisfied that there was no requirement for the Respondent to consult the Applicant regarding redundancy. 3. Was it 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? [22] In Helensburgh Coal Pty Ltd v Bartley [2024] FCAFC 45 at 66, the Full Court of the Federal Court of Australia notes: “It is for the FWC, as a specialist statutory tribunal, to determine whether redeployment would have been reasonable in any given case. Within the wide bounds of what is legally reasonable, that assessment is to be made having regard to such matters as the FWC thinks are apt to assist it. If, in a given case, there is reason to think that an employer could have taken steps that would have enabled redeployment in preference to dismissal, that possibility may fairly be brought to bear upon the FWC’s assessment of what “would have been reasonable in all [of] the circumstances”. [23] In Helensburgh Coal Pty Ltd v Bartley [2021] FWCFB 2871 at [8], the Full Bench reaffirmed the rules of redeployment set out by Vice President Hatcher in Pettet and Ors v Mt Arthur Coal Pty Ltd [2015] FWC 2851 at [6] in relation to s.389(2) of the FW Act as follows: “The principles concerning the interpretation and application of s.389(2) have been stated in two Full Bench decisions, Ulan Coal Mines Ltd v Honeysett and Technical and Further Education Commission t/a TAFE NSW v Pykett. Those principles were summarised in Huang v Forgacs Engineering Pty Limited as follows: (1) The exclusion in s.389(2) poses a hypothetical question which must be answered by reference to all of the relevant circumstances. -- 5 of 7 -- [2024] FWC 2066 6 (2) The question is concerned with circumstances which pertained at the time of the dismissal. (3) In order to conclude that it would have been reasonable to redeploy the dismissed person, the Commission must find, on the balance of probabilities, that there was a job or a position or other work within the employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employee. (4) A number of matters are capable of being relevant in answering the question, including the nature of any available position, the qualifications required to perform the job, the employee’s skills, qualifications and experience, the location of the job and the remuneration which it offered.” [24] The Full Bench stated that the work to which an employee might be redeployed must, ultimately, be work over which the employer has control.13 [25] I am satisfied on the balance of probabilities that the Applicant could not be redeployed by the Respondent. When Mr Crowther stepped down from his role as a CEO, Mr Curtis Thompson was engaged in February 2024. Mr Crowther had the Real Estate expertise which the Applicant had at the time of the Applicant’s redundancy. Therefore, the Applicant could not be redeployed in this role. There was no position for him with the Respondent. [26] In considering associated entities, I do not find that the Respondent could have redeployed the Applicant. The Applicant noted three potential associated entities which were Sunnybank Districts Pty Ltd, Hit Escape Pty Ltd and Jentla Pty Ltd. 14 [27] Jentla Pty Ltd and Hit Escape Pty Ltd were Mr Burstow’s companies which focus on invoicing. I did not think that being redeployed to these entities would be suitable given that Mr Burstow himself is contracted to work with the Respondent and therefore, the Respondent would not be able to redeploy the Applicant to these entities as they do not have control over these enterprises. [28] I also do not find it to be suitable for the Applicant to be redeployed within Sunnybank Districts Pty Ltd. Mr Crowther is the Director and Real Estate Principal of Sunnybank Districts Pty Ltd. Although the Applicant did have extensive real estate experience, the Applicant did not hold a real estate license at the time of redundancy, nor would be given a secured salary if working as a real estate agent. Furthermore, I am not satisfied on the balance of probabilities that the Applicant would have accepted such role if offered to him given the breakdown in the relationship between himself and Mr Crowther surrounding from Ventureon. Conclusion [29] Therefore, I am satisfied that the dismissal of the Applicant was a genuine redundancy under s.389 of the Act and the Applicant is not eligible to seek a remedy for unfair dismissal. The Applicant raises issues of not being paid the correct notice, and superannuation. These are not issues determined under this jurisdiction and need to be sought in the correct jurisdiction. [30] The jurisdictional objection of genuine redundancy is upheld. I order that this Application be dismissed. -- 6 of 7 -- [2024] FWC 2066 7 DEPUTY PRESIDENT Printed by authority of the Commonwealth Government Printer <PR777822> 1 Helensburgh Coal Pty Ltd v Bartley and Anor [2024] FCAFC 45 at 55. 2 Fair Work Act 2009 (Cth) s 389(1)(a). 3 Ibid s389(1)(b) 4 Ibid s389(2)(a)-(b). 5 Ibid at 58. 6 Jones v Department of Energy and Minerals [1995] IRCA 292 (16 June 1995), [(1995) 60 IR 304 at p. 308 (Ryan J)]; cited with approval in Ulan Coal Mines Limited v Howarth and others [2010] FWAFB 3488 (Boulton J, Drake SDP, McKenna C, 10 May 2010) at para. 17, [(2010) 196 IR 32]. 7 Kekeris v A. Hartrodt Australia Pty Ltd T/A a.hartrodt [2010] FWA 674. 8 Witness Statement of Alexander Moore 54. 9 Ibid 57 – 62. 10 Witness Statement of Russell Burstow – Annexure RB-1. 11 Ibid 23. 12 Statement of Peter Crowther 12, Statement of Alexander Moore 49. 13 Helensburugh Coal Pty Ltd v Bartley and Anor [2021] FWCFB 2871 at [54]. 14 Statement of Alexander Moore 68, 69. -- 7 of 7 --