On 16 July 2020, the Fair Work Commission handed down its decision in Samuel McClelland v Kamori Australia Pty Ltd t/a Lone Pine Koala Sanctuary [2020] FWC 3707 which determined whether the Respondent’s decision to terminate the Applicant’s employment amounted to unfair dismissal and was not due to the genuine redundancy of his role.

The Applicant was employed as a retail worker primarily responsible for coordinating photographs of visitors of the Respondent holding koalas.

Due to the coronavirus pandemic in late March 2020, the Respondent received correspondence from the federal government stating that “animal interactions should be stopped if the activity involves a keeper holding the animal for customers to pat or stroke, or requires a keeper to maintain close proximity to a customer interacting with the animals”. Such interactions did not meet the social distancing recommendations in place at the time.  The Respondent acknowledged that it would be unable to comply with social distancing recommendations if it continued to operate and offer photographs with a koala to visitors.

As a result, the Respondent considered it would no longer require such a photography role to be performed by anyone, as the role involved close interaction between wildlife and visitors. As the Applicant was principally responsible for photography, the Respondent considered that the Applicant’s role could no longer be safely performed, given its non-compliance with social distancing recommendations.  In addition, the Respondent submitted that more than half of its visitors are international tourists and the significant and immediate downturn in such visitors significantly impacted its business.

The Applicant argued that there were other roles that he could have performed or been redeployed into, such as a retail or IT role, with duties he had previously performed.

The Respondent argued that “due to the possibility that coronavirus may spread as a result of physical contact between koalas and guests, the obvious impracticability of sanitising a koala, and the restrictions still in place for international travellers”, it was unlikely that the role the Applicant was employed to perform would“be required to be performed by anyone for an indefinite period of time”. The Respondent also relied on the opinion of the International Air Transport Association in concluding that it would be unlikely to return to pre-coronavirus levels until sometime in 2023. Among other projections, the Respondent relied on this in opting not to apply for JobKeeper in respect of a number of roles, including the Applicant’s. Further, the Respondent already had other employees performing the roles the Applicant argued he should be redeployed into.

The test under section 389(1)(a) of the Fair Work Act 2009 (Cth) is whether or not the Employer made the decision to no longer require the position to be performed due to a change in operational requirements for its enterprise. It is well established that an employee may still be genuinely made redundant when there are aspects of the employee’s duties being performed by other employees.

The Commission was satisfied that the Applicant had performed a range of roles in his years of employment with the Respondent, including retail and IT functions. However, “his primary role at the time of termination was the photography coordinator role and this role was clearly gone”. Additionally, many of the other retail roles the Application had previously performed were also made redundant.

The Commission was satisfied that the Respondent had met its consultation requirements and that there were no alternative options for redeployment. Further, contrary to the Applicant’s argument, the Commission noted that the Respondent had no obligation to offer the Applicant casual work in favour of other casual employees retaining the work that remained to be performed. “This is not the test.” On the facts and evidence, the Commission could not find that there were any alternative or available positions for the Applicant to be redeployed into at the Respondent’s enterprise. The Commission also noted that it is to make a decision about whether the job was still required because of changes the employer has decided to make, and is not concerned with whether the employer’s decision to make certain operational changes is a good or bad decision.

On this basis,  the Commission dismissed the Application and held the dismissal was a case of genuine redundancy.

If you would like more information about termination of employment processes and the redundancy provisions of the Fair Work Act, please contact Ai Group’s Workplace Advice Service on 1300 55 66 77.

Alternatively, if you would like advice and assistance regarding managing termination of employment processes, including meeting any relevant consultation requirements and managing the risks of unfair dismissal matters during COVID-19,please contact your local employment, workplace and industrial lawyer in Sydney, Newcastle, Wollongong, Adelaide, Melbourne or Brisbane or contact Ai Group Workplace Lawyers here.

By Monica Wilkie

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