Advertising to fill previous redundancies

I am often asked whether there is a time limit before an employer may re-hire an employee into a position previously made redundant before an employer may move to re-fill the position. The answer, technically is no, as is evident in the following extract from a recent unfair dismissal case. The case is also interesting because it highlights that the Fair Work Commission recognizes how fast an employer’s economic circumstances may change during Covid 19.

“Consideration

[32] There is no dispute between the parties, and I am satisfied, in relation to three of the four matters referred to in ss.396(a)-(d) of the Act, as follows.

[33] Firstly, Mr Lakhan’s application was made within the 21-day period required by s.394(2) of the Act (s.396(a) of the Act).

[34] Secondly, there is no dispute that Mr Lakhan is a person protected from unfair dismissal as defined by s.382 of the Act in that he is an employee who has completed a period of employment of at least the minimum employment period, and the sum of his annual rate of earnings and such other amounts is less than the high income threshold (s.396(b) of the Act).

[35] Thirdly, as to whether this matter involves a dismissal that was consistent with the Small Business Fair Dismissal Code (s.396(c) of the Act), it was not in dispute and I find that United Petroleum is not a small business employer within the meaning of s.23 of the Act, having 15 or more employees at the relevant time. As such, I am satisfied that the Small Business Fair Dismissal Code does not apply.

[36] As to the fourth matter, under s.396(d) of the Act the Commission must decide before dealing with the merits of any unfair dismissal remedy application whether the dismissal was a case of genuine redundancy. Further, under s.385(d) of the Act, one of the requirements for an unfair dismissal is that it “was not a case of genuine redundancy”.

[37] Section 389 of the Act defines genuine redundancy as follows:

“(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)

[38] United Petroleum submits that the definition of genuine redundancy in s.389(1)(a) of the Act is made out on the facts as it made a decision to restructure due to changed operational requirements, under which a number of positions were no longer required. It says that Mr Lakhan’s position, along with all of the “Area manager” positions in Victoria, and most nationally, were identified as being no longer required and consequently were made redundant. I observe that the term “Area manager” and “Retail Store Specialist” appear to have been used interchangeably within United Petroleum.

[39] In Christina Adams v Blamey Community Group, 17 the Full Bench of the Commission stated:

“… it is necessary to state at the outset that consideration of whether the employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the enterprise does not involve a merits review of the employer’s decision to make the person’s job redundant. It is not to the point that it may have been open to the employer to make a different operational decision which may have allowed the relevant employee’s job to be retained. As was stated in Low
v Menzies Property Services Pty Ltd, “Whether it was objectively fair or justifiable to decide to abolish a position is beside the point, as long as the employer acted as it did because of changes in its operational requirements.” 18 What s.389(1)(a) requires is for findings of fact to be made as to whether, firstly, the employer has made the decision that the relevant employee’s job is no longer required to be performed by anyone and, secondly, whether that decision was made because of changes in the operational requirements of the enterprise. If there was an ulterior motive for the decision – that is, if the real reason for the decision did not genuinely relate to any change in operational requirements, whatever the ostensible reason may have been – then it will not be possible to make the second finding of fact. However once these findings of fact are made, the element of the genuine redundancy definition contained in s.389(1)(a) is satisfied and no further inquiry is necessary.”19

[40] In the Form F2, Mr Lakhan raised the allegations of discriminatory and racist behaviour, together with allegations of targeted bullying behaviour from senior management and asserted they lay behind the decision of United Petroleum to manage him out of his employment. He also alleged there had been a deficient redundancy process and a failure to discuss and consider redeployment.

[41] While I accept the evidence of Mr Szymczak that despite the performance issue raised, the significant operational issues arising from the COVID-19 pandemic overtook this in priority and neither the performance concerns, nor Mr Lakhan’s illness, played any part in the reasons for his termination by way of redundancy, I consider it is nonetheless understandable, given the timeline of subsequent events, that Mr Lakhan became sceptical about the underlying basis for his dismissal. His position is:

  • His job was being advertised less than one month after he was dismissed;
  • Through the job application lodged in his son’s name, he was offered an interview for what was his old job; and
  • United Petroleum offered him his old job back.

[42] Mr Lakhan submits that the fact that the job offered had a different title to that which he had held is immaterial because the description of the tasks to be performed in it were the same. Moreover, he contends that the position description included the same tasks with some additional responsibilities.

[43] However, having regard to the approach outlined by the Full Bench in Christina Adams v Blamey Community Group, I am satisfied United Petroleum made the decision that Mr Lakhan’s job of Retail Store Specialist was no longer required to be performed by anyone. United Petroleum identified that all such Retail Store Specialist positions in Victoria, and most nationally, were no longer required. Specifically, Mr Szymczak gave evidence that six Retail Store Specialist positions (including Mr Lakhan’s) and the Victorian State Manager position were made redundant with effect on either 17 April 2020 or 8 May 2020 20 and Mr Lakhan identified two additional employees who were also made redundant.

[44] I am also satisfied that the decision was made because of changes in the operational requirements of United Petroleum. In this respect:

  1. a) I have noted the state of the United Petroleum retail business had been discussed at the Retail Board meeting on 25 March 2020. It is apparent at that time that thought was being given to the structure of the business and the role of Area managers.
  2. b) Mr Szymczak gave unchallenged evidence regarding the 50% drop in petrol sales during April 2020 and I accept his additional evidence that:
  3. many United Petroleum stores were struggling with profitability due to low sales;
  4. there was a great deal of pressure on the business to reduce rents to dealers and to provide extra support;

iii. United Petroleum was trying to reset their shops to have items that they thought that consumers would want to buy during the COVID-19 pandemic; and

  1. a large number of employees were either stood down completely or partially because their work “just needed to cease.”
  2. c) I also accept the evidence from Mr Szymczak that United Petroleum had decided it needed to do things quite differently by moving away from the structure whereby it had engaged the area representatives called Retail Store Specialists who were responsible for the sales, standards and operations of between 15 and 30 stores, and decided instead to manage its stores via financial and other audits conducted from its Head Office.

[45] Further, notwithstanding the LinkedIn advertisement and subsequent reference to it by Ms Harris, I observe that the position of Retail Operations Specialist has not been filled since the dismissal of Mr Lakhan on 17 April 2020. 21 Nor has the position of Retail Store Specialist been restored. As noted above at [43], it would seem at least three other employees holding the position of Retail Store Specialist have been retrenched since then22 and Mr Lakhan identified two additional employees who were also made redundant.23”

Kunwar Lakhan v United Petroleum Pty Ltd T/A United Petroleum [2020] FWC 4970 delivered 15 September 2020 per Clancy DP