Aaron Carroll v RLA Polymers Pty Ltd

[2021] FWC 5082

[2021] FWC 5082

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Aaron Carroll
v
RLA Polymers Pty Ltd
(U2021/4302)

COMMISSIONER SIMPSON BRISBANE, 17 AUGUST 2021

Application for unfair dismissal – whether there was a genuine redundancy – Role no longer required – No redeployment options – Application dismissed.

[1] On 19 May 2021, Mr Aaron Carroll made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy against RLA Polymers Pty Ltd (The Respondent).

[2] The Application was made out of time and was allocated to me to determine whether an extension should be granted for Mr Carroll to file his application. The matter was listed for Hearing of the extension of time matter on 4 June 2021. The Respondent did not oppose the extension of time being granted. For reasons provided on the record at the Hearing I decided to grant an extension for Mr Carroll to file his application on the basis exceptional circumstances existed under section 394(3) of the Act.

[3] The Respondent raised a jurisdictional objection on the basis Mr Carroll’s dismissal was a case of genuine redundancy and therefore Mr Carroll was not able to pursue an unfair dismissal application.

[4] I determined that both the jurisdictional objection and the merits of the application should be heard together. Directions were issued to that effect and the hearing for the matter took place on 12 July 2021 in Brisbane.

[5] Mr Carroll represented himself with assistance from his wife, Ms Sam Carroll. The Respondent was represented by Mr Paul Ingle, Group HR Manager.

Jurisdictional Objection – Genuine Redundancy

[6] Section 389 sets out the requirements for a genuine redundancy as follows:

“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.”

[7] It was apparent that Mr Carroll was not employed under a modern award or enterprise agreement, and so it is unnecessary to consider whether the Respondent had failed to consult about the redundancy. On that basis it is only necessary to consider whether the Respondent has satisfied the requirements of s.389(1)(a) and s.389(2).

Section 389(1)(a) - Did Mr Carroll’s employer no longer require his job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise?

[8] The Respondent submitted its business was broken down into five separate divisions each with their own reporting structure, budgets, products and markets. They consisted of:

•  Hardware/Plumbing;

•  Construction;

•  Industrial;

•  Flooring;

•  Tiling

[9] The Respondent submitted that for a significant amount of time it has been concerned about its ability to successfully trade in the Queensland Constructions markets. It submitted that a number of structural changes had been made and as an attempt to address this, Mr Carroll was recruited in the role of Sales Manager - Construction (Qld) in March 2020.

[10] The Respondent submitted that full support was provided to Mr Carroll to progress the sales in the Construction markets. It submitted there were expectations that Mr Carroll’s past network of distributors would also encourage and increase sales moving forward.

[11] The Respondent submitted that although best attempts were made by Mr Carroll, along with support from the Respondent’s management, the strategy failed and sales in fact declined, whereas other States increased in their performance.

[12] The Respondent submitted that over the following months full support was given to Mr Carroll to improve the poor sales situation and included, regular telephone discussions, face to face meetings and visits with his Business Manager, along with sales reporting on a monthly basis. Mr Carroll was well aware and equally frustrated with the continued decline in sales and business opportunities.

[13] The Respondent submitted that as a result of the situation a further review of its business operations and organisational requirements was conducted and it was determined that the position which Mr Carroll held would no longer be required within its business and was therefore redundant.

[14] The Respondent submitted that since mid-2020, confidential negotiations have occurred between RLA Polymers and Axis Adhesives regarding the acquisition of Axis and their brand name of waterproof products Gripset.

[15] It submitted that on 15 March 2021, the acquisition was finalised and RLA became responsible for the business. It submitted that the Gripset sales team, along with other employees were employed by RLA from that date. A new RLA Division - Gripset was established in line with the other Divisions.

[16] The Respondent submitted that on 13 April 2021, Mr Carroll met with the National Business Manager - Construction and the National Human Resources Manager in person in the Queensland office. It was explained to him that the Respondent would be discussing the business operations and the review that had been conducted; and that this may lead to the role he held being redundant. He was also invited to have a support person present with him, but he declined.

[17] It is submitted that an open discussion then took place regarding the past and current poor sales performance and the lack of future business opportunities on the horizon. Mr Carroll accepted the matters discussed and was invited to provide any initiatives or thoughts but could not offer any other solutions to improve the sales situation. He was also informed that no redeployment opportunities existed and accepted that position.

[18] The Respondent submitted that after further consideration Mr Carroll was informed that the role of Sales Manager - Construction (QLD) was redundant to the business needs and as such his employment was terminated.

[19] The Respondent said Mr Carroll was advised that the National Business Manager - Construction Mr Andrew Constantinou, would be responsible for the existing customers in Queensland moving forward.

[20] The Respondent submitted on 21 April 2021, a staff movements announcement was distributed to all of the Respondent’s staff, which included the departure of Mr Carroll and others from the business, along with the appointment of a number of staff, including the new role of Sales Representative - Industrial/Construction (Qld). Due to the extended absence of the National Business Manager - Industrial, this role would report to National Business Manager - Construction at that time.

[21] It was further determined that the new role of Sales Representative - Industrial would by nature of its environments and customers, enter Construction sites and assist where needed in the sales and product technology of construction products, hence the addition of Construction in the title.

[22] The Respondent submitted the role of Sales Manager - Construction (Qld) is not being performed by any person and is clearly redundant to the business operations.

[23] The Respondent submitted that as far as the material which has been put forward by Mr Carroll is concerned claiming another employee was employed to perform his job, it was simply the case that the new employee, Mr Hazelwood, was uncertain of the precise designation of his position.

[24] The Respondent submitted that on 19 May 2021, Mr Hazelwood described himself as a "Sales Representative" with the company "TBC" (to be confirmed). Although subsequently he described himself as a "Sales Manager Construction" on his LinkedIn profile, this was not his position nor was it authorised by the company.

[25] The Respondent submitted that as was circulated internally to all RLA Staff, regarding staff movements on 21 April 2021, Mr Hazelwood’s position was as "Sales Representative Industrial and Construction (Queensland)".

[26] The Respondent submitted that on investigation, Mr Hazelwood, stated that he performed his role for a month without any title appearing on his email signature or other documentation and through frustration, adopted the previous description as a guide and was more than happy to be seen by customers as a sales manager. The Respondent submitted this error has since been corrected on both emails and LinkedIn and he is well aware of his position and title as Sales Representative Industrial/Construction (Qld).

[27] Mr Carroll submitted that initially he was of the belief that his dismissal was a genuine redundancy, however that on the day he lodged his unfair dismissal, he was provided information from an existing customer, that RLA had employed another person to perform his role.

[28] Mr Carroll submitted that the Respondent has employed Mr Gavin Hazelwood (previously employed by Adheseal, a former client of Mr Carroll) who commenced the day following Mr Carroll’s redundancy.

[29] Mr Carroll submitted that the Adheseal account was listed and managed in the construction division at the Respondent, and that this suggested Mr Hazelwood has experience in the construction industry, not so much in industrial. Mr Carroll submitted Mr Hazelwood was employed by Adheseal for over six years, meaning that in the last six years Mr Hazelwood has worked in sales supporting the construction industry.

[30] Mr Carroll submitted the Adheseal website has no mention of industrial supply or the supply of products into the industrial market. Mr Carroll submitted it refers to 11 industries within the construction sector and two in the auto sector. Mr Carroll therefore questioned why Mr Hazelwood was employed to fulfill a position at the Respondent in an industrial role.

[31] Mr Carroll also referred to the experience listed on Mr Hazelwood’s LinkedIn account to support this view that Mr Hazelwood’s experience is in the division that Mr Carroll had been employed in as Sales Manager Construction – QLD.

[32] Mr Carroll submitted Mr Hazelwood’s LinkedIn account originally stated on 19 May 2021, that he was a Sales Representative with the business name To Be Confirmed. He submitted that on 22 May 2021 Mr Hazelwood updated his role description to Sales Manager Construction at RLA Polymers, which is the role description he was made redundant from.

[33] Mr Carroll submitted that after lodging the unfair dismissal claim, Mr Hazelwood changed his role description to a “very generic and non-specific Sales Representative.”

[34] Mr Carroll questioned how a new employee did not understand or could be so confused about what their job title or description is, as this is something that would normally be discussed at an interview, or even when an applicant applies for a position.

[35] Mr Carroll submitted it was very clear that Mr Hazelwood will be performing the duties and role responsibilities of an employee in the construction division as written on the Staff Movements notice that was distributed by the Managing Director. Mr Carroll submitted that the Employment Contract does not state anything about supply into the industrial market.

[36] Mr Carroll submitted that in Mr Ingle’s witness statement, it provided that it would be appropriate for Mr Hazelwood to learn the range of the Respondents products and technology within the construction sector. Mr Carroll questioned why it would be appropriate if he is employed for the industrial sector and would not be servicing the customers that belonged to the construction region.

[37] Mr Carroll submitted that it was not common business practice that products that fell under construction (or other divisions) be sold to customers outside of that division without approval from the associated business manager. Mr Carroll submitted that if the Respondent was intending for Mr Hazelwood to learn the construction products and technology as well as industrial, then he could have learnt about the industrial product range.

[38] Mr Carroll submitted that Mr Constantinou’s statement provided that he has visited and serviced the construction accounts in Queensland. Mr Carroll submitted this would raise the question as to when and how often Mr Constantinou has visited construction customers. Mr Carroll said based on the information/responses and statements there now appears to be two RLA employees working on construction customers, when he was told there was no further requirement for a sales manager in the construction division.

[39] Mr Carroll submitted in Mr Ingle’s witness statement that Mr Ingle confirms that Mr Constantinou has been to Queensland to service the construction customers, but also states that he can confirm that the role which Mr Carroll held is not being performed by any person. Mr Carroll questioned how that could be accurate if both Mr Constantinou and Mr Hazelwood will be visiting customers or be responsible as stated in witness statements and or the staff movements announcement.

[40] Mr Carroll submitted the Respondent has provided that the takeover of Gripset was on 15 March, being seven business days before the employee contract was signed by both Mr Hazelwood and Mr Ingle. Mr Carroll submitted that Mr Ingle’s witness statement states he became aware of a potential person in the industrial sales sector who had been interviewed for a role with Gripset. Mr Carroll submitted Gripset don’t have an industrial sector, they are a supplier of waterproofing products into the construction industry. Mr Carroll again submitted Mr Hazelwood’s experience for 18 years was in waterproofing and construction.

[41] Mr Carroll questioned why, if there was no longer a requirement for his role, was there still is a requirement for his customers to be managed by Mr Constantinou, a member of the construction division.

[42] Mr Carroll questioned why his old phone number was given to Mr Hazelwood and submitted it would be more appropriate for Mr Hazelwood to be given a new number.

[43] In relation to the redundancy meeting, Mr Carroll submitted he was informed at the beginning of the meeting by Mr Ingle that nothing he would say would change the outcome of the meeting.

[44] Mr Carroll submitted he has been requesting (in writing and in discussions with his direct manager) to have the Respondent as an approved supplier on the QTMR (Queensland Transport & Main Roads) list, which would see the Respondent obtaining new business opportunities. Mr Carroll submitted that although this was not brought up in the redundancy meeting, this is one of many examples where low/reduced sales results were not a direct link to his performance but showed the lack of support and marketing material available and forthcoming.

[45] Mr Carroll submitted in response to the Respondent’s submission that he had been provided with full support to improve the poor sales situation, that he was well aware and equally frustrated with the continued decline in sales and business opportunities.

[46] Mr Carroll submitted there were no specific or dedicated conversations had relating to the sales performance in Queensland. Mr Carroll said they did however, from time to time discuss the ebbs and flows of the sales figures in Queensland. Mr Carroll also submitted there were meetings via videoconferencing.

[47] Mr Carroll submitted in the 13 months he was employed by the Respondent, Mr Constantinou visited once between 2 and 4 February 2021. He submitted the agenda for this trip was to visit customers in his region, discuss future opportunities and provide information to a new prospective customer. Mr Carroll submitted at no point was there any conversation with the eight customers visited over the three days relating to the sales performance with the Respondent.

[48] Mr Carroll submitted they were supposed to visit Adheseal, although Mr Constantinou took a phone call from the Managing Director whereby a conversation relating to the takeover of Gripset was had on Bluetooth through Mr Carroll’s vehicle. Mr Carroll submitted he was then advised that Adheseal would be reallocated to the Gripset Sales Manager and they would no longer need to visit them.

[49] Mr Carroll submitted that based on this, his understanding of the sales situation in Queensland, was that the region was steady, and he was relying on data from the internal reporting system (phocas) that the sales figures were up, in comparison to the previous year. Mr Carroll submitted there were many variables to consider. He submitted when the purchase of Gripset was announced he was advised that he would be having accounts reallocated due to the customer purchasing higher value in the Gripset range. Mr Carroll submitted this alone impacted the overall sales in the construction region, one account alone was worth $200,000 per year. Mr Carroll submitted he was advised personally by the Managing Director that his budget and targets would be adjusted accordingly, although he never received any of that information.

[50] Mr Carroll submitted he asked on many occasions for support of printed matter and marketing materials to supply to existing and new customers. Mr Carroll submitted this was commonly requested by customers and also the request to hold stock in Queensland for immediate purchase as customers could do this from competitors that held stock locally in Brisbane, and this caused many orders to be lost due to no immediate availability.

[51] Mr Carroll submitted that when looking at the graph supplied by the Respondent it shows a decrease in the last few years and he did not dispute there with drops of 4.8% in 2019 from 2018, and then a further 7.8% in 2020 from 2019, although projecting out as the data supplied for 2021 as this would only be for six months’ worth of sales it appears that the projected number would sit around $1,352,214.

[52] Mr Carroll submitted this would mean that the region would be up $66,000 finishing at 105% of LY budget. Mr Carroll submitted this left him questioning the Respondent’s submission that there was a decrease in sales. Mr Carroll submitted there was no active sales manager from late 2019 to early 2020. He submitted he was employed in March 2020 and taking into account the situation that COVID-19 placed upon the country, that sales figures were not so bad in comparison to other manufacturing businesses. Mr Carroll further submitted that he was only provided an actual budget in January of 2021 and questioned how he was to achieve such a target in three months.

[53] Mr Carroll did not dispute the fact that the sales were a concern, however questioned whether the sales were down enough to justify a genuine redundancy using this reason.

[54] Mr Carroll submitted there is still a construction industry to be serviced in the Queensland region. He submitted that the Respondent has already admitted that the customers will now be looked after by someone else. Mr Carroll submitted that the documents provided by the Respondent provide conflicting evidence on who will be responsible for the construction division in Queensland going forward.

[55] Mr Carroll questioned why a newly appointed employee is now carrying out the duties he was responsible for if there was no need for that position.

[56] Mr Carroll submitted it was his understanding that Mr Hazelwood would be pursuing and maintaining customers under the construction division as “that is where his employment history and knowledge will take him.” Mr Carroll submitted Mr Hazelwood’s employment history has very little if any mention of industrial experience for the previous 18 years.

[57] Mr Carroll submitted there is still a clear need for a construction sales representative in Queensland but also a need in other divisions that have recently been added to the business model, after the acquisition of AXIS/Gripset.

[58] Mr Carroll submitted if the business requires Mr Constantinou, the National Business Manager, to fulfill a Sales/Account Manager’s responsibilities/role as well as a member of another division there is clearly still a requirement for the position that he was made redundant from.

[59] Mr Carroll was asked who sent him the email about Mr Hazelwood commencing at the Respondent. Mr Carroll said they don’t want to be identified because they fear retribution. He said it was a friend of his he has known for many years and is a customer.

[60] It was put to Mr Carroll that titles are important, however so are contracts of employment to which Mr Carroll agreed. It was put to Mr Carroll that Mr Hazelwood’s employment contract stated his title was Sales Representative Industrial Queensland. Mr Carroll eventually agreed he could see this.

[61] Mr Carroll agreed the employment contract was a legal document and was asked why Mr Hazelwood’s title would be industrial if he was construction as Mr Carroll claimed. Mr Carroll responded by asking why Mr Hazelwood would have construction on his LinkedIn if he was industrial.

[62] Mr Carroll agreed he has placed a fair amount of emphasis on LinkedIn as part of his case, though said he did not have LinkedIn himself. Mr Carroll was asked about his understanding of LinkedIn. Mr Carroll said it was social media for employers to look for employees and that employers can search for key words.

[63] Mr Carroll agreed it is a social media platform that is totally run by the individual who sets up the account. Mr Carroll also agreed that the Respondent has no control over the LinkedIn page of one of its employees.

[64] It was put to Mr Carroll that he mentioned in his induction, during the recruitment process that he knew Mr Andrew Constantinou. Mr Carroll said he knew Mr Constantinou through former employment in Brisbane and Melbourne. Mr Carroll said they spoke a few days a week.

[65] Mr Carroll said prior to his employment with RLA he would keep in regular contact with Mr Constantinou, asking technical advice. He agreed he was employed at RLA on the basis he had a good relationship and good communication with Mr Constantinou.

[66] Mr Carroll agreed that Mr Constantinou was unable to visit Mr Carroll to complete the induction process due to COVID-19. Mr Carroll said he had some files sent to him and he had to go and find all existing business contacts. Mr Carroll said he just fumbled his way through.
Mr Carroll accepted that Mr Constantinou explained the role to him when he commenced but could not follow up because of COVID-19.

[67] Mr Carroll was asked if it was his position that he had no support. Mr Carroll said to some extent, yes. It was put to Mr Carroll all employees have access to technical support and catalogues. Mr Carroll said he asked a number of times for catalogues from marketing but never received them.

[68] Mr Carroll said he had been in a sales capacity role for four to five years. Mr Carroll agreed he understood the ropes of the role and why he was recruited, being that he had a network.

[69] It was put to Mr Carroll that in mid-February when his child was born, Mr Ingle came and met with Mr Carroll off site and discussed poor sales and offered Mr Carroll a chance to put forward ideas on how it could be improved. Mr Carroll said he didn’t know it was a formal meeting.

[70] Mr Carroll accepted he had an opportunity on this occasion to discuss the alleged lack of support from Mr Constantinou. Mr Carroll said he did not raise it with Mr Ingle at the time because he didn’t realise it was a formal meeting.

[71] Mr Carroll accepted he did not receive any warnings during his employment. He also accepted there were no performance issues raised on 13 April.

[72] Mr Carroll accepted he was advised at the 13 April meeting that his position was no longer required, however said at the start of the meeting he was told that nothing he would say would change the outcome. Mr Ingle submitted the Respondent disputed this.

[73] Mr Carroll said in his role, his job was to sell construction products to customers for example waterproofing, sealants, poxy flooring etc. Mr Carroll accepted that there was an industrial division but no dedicated sales manager in Queensland but there was in New South Wales.

[74] Mr Carroll accepted the figures provided by the Respondent for sales in his division. He accepted that the figures show a significant drop off but said they were projected.

[75] It was put to Mr Carroll that in the Respondent’s case there would be evidence led that Mr Hazelwood was reporting to Mr Constantinou, and that Mr Constantinou was going to be covering construction in New South Wales and that the NSW manager of industrial was off sick and asked his view on this. Mr Carroll said he had customers calling him and he had been giving advice because they had no one to ask. He said they were asking Mr Hazelwood who didn’t have the answers.

[76] Mr Ingle accepted Mr Hazelwood signed his contract with the Respondent on 24 March, and he was asked why there was a delay until 14 April before he started. Mr Ingle said it was mainly structural, and that they had a number of positions. He said he is the only Human Resources person nationally and things were prioritised. He said it was agreed he could come to Queensland to speak with Mr Carroll and then commence induction with Mr Hazelwood at the same time.

[77] Mr Ingle said the decision was made by Mr Constantinou and himself and that a review had been going for some time in relation to what they were going to do about Queensland. He said in February 2021 he came up and spoke to Mr Carroll to seek his input into what they could do, and nothing was raised. Mr Ingle said it was an open meeting where questions about Mr Constantinou’s support was raised.

[78] Mr Ingle said when he met with Mr Carroll in April the decision was pending, and had options come forward they would have considered them. He said as there as there were none, they decided the position was redundant to the business needs.

[79] It was put to Mr Ingle he stated there is only one salesperson per division in Queensland and he was asked whether that meant there are more than one in other states. Mr Ingle said their biggest division is CTA and they have numerous people, but in other divisions in other states there are ‘lone rangers’.

[80] It was put to Mr Ingle that AXIS/Gripset are not an industrial based business. Mr Ingle said he is not that technical, but he understood they were in the industrial markets and that’s why they were aware of Mr Hazelwood.

[81] It was put to Mr Ingle that if someone had 18 years’ experience in industrial, why wasn’t it on LinkedIn. Mr Ingle responded that RLA do not use LinkedIn for recruitment purposes, and that anyone could put anything on their LinkedIn page and RLA cannot do anything about it.

[82] Mr Ingle accepted there was a staff movements document that was distributed by Managing Director Mr Troy Hogan and himself. He accepted that on the day Mr Carroll was made redundant he was advised that Mr Constantinou would take responsibility of the construction customers that fell under Queensland. Mr Ingle said they had some staff movements, and they can’t drop the service just because someone had left. He said someone needed to pick up the work and so Mr Constantinou took on some work and Mr Hazelwood took on other aspects.

[83] It was put to Mr Ingle that it would make more sense to pass on Mr Carroll’s phone number to Mr Constantinou not Mr Hazelwood, when Mr Constantinou is construction and Mr Hazelwood is in industrial. Mr Ingle said he did not know why this occurred.

[84] It was put to Mr Ingle that Mr Hazelwood’s role is construction/industrial so now the Respondent has both Mr Constantinou and Mr Hazelwood on construction when another role was made redundant. Mr Ingle responded that the Respondent could not just drop the service. He said that Mr Carroll could not give the technical advice for the industrial aspect of role.

[85] Mr Ingle was asked whether Mr Hazelwood’s experience in waterproofing, is now falling under industrial. Mr Ingle said he was not sure, and that Mr Constantinou will be able to answer that.

[86] It was put to Mr Ingle the main reason for the role being redundant was poor sales, and there was a project that RLA had been pushing with TMR. Mr Ingle was asked whether that was taken into consideration by the Respondent before making the Queensland role redundant because Mr Hogan was aware it was going to bring in some significant figures. Mr Ingle said he was not across this, and he wasn’t directly involved with those discissions. Mr Ingle said the decision to make the role redundant was nothing to do with Mr Carroll’s performance and the Respondent understood the frustrations he had. Mr Ingle said it was why he came up in February 2021 to understand the frustrations.

[87] It was put to Mr Ingle Mr Carroll did raise those frustrations. Mr Ingle said they had a conversation, but Mr Carroll didn’t put forward any options. It was put to Mr Ingle Mr Carroll said to him his biggest frustration was lack of stock, to which Mr Ingle said he didn’t recall that.

[88] Mr Ingle said from the outset, no termination with the business is taken lightly and they believed they had done all the reviews and had made all efforts to determine that a Sales Manager Queensland in the construction area was no longer needed by the business. He said they agreed that they cannot just dump the remaining clients and yes there was some servicing done by Mr Hazelwood in construction, but his main focus was to support the manager of industrial and to enter the industrial market in Queensland down the track.

[89] Mr Constantinou was asked what the difference was between the products sold by the construction division and the industrial. Mr Constantinou said construction was already established in Queensland and the intention for Mr Hazelwood was to look after existing business whereas with the industrial side his role was to grow it. He said there are some products that overlap, but industrial is mainly tier one factories whereas construction was individual sites or end users.

[90] Mr Constantinou was asked what type of business Adheseal was. Mr Constantinou said construction and waterproofing products, and Mr Constantinou said there is some industrial through their contacts with the general manager.

[91] Mr Constantinou disagreed with the proposition put to him that it was prohibited by the Respondent to allow different divisions of the business to sell a product that came under a different division. Mr Constantinou said the Respondent cross-sells across different divisions.

[92] Mr Constantinou said he was not aware of any plans to have industrial and construction as a joint division. It was put to Mr Constantinou that the industrial division role of Mr Hazelwood is not a full-time role. Mr Constantinou said it was but the construction role is to help out from time to time.

[93] Mr Constantinou maintained Mr Carroll was told Mr Constantinou would take on the responsibility of the remaining customers in construction. Mr Constantinou accepted Mr Carroll’s mobile phone number was diverted to Mr Hazelwood and said the emails were as well. He said Mr Carroll’s telephone had that customer base and they didn’t want to cut that line off so if Mr Hazelwood received construction phone calls, he could forward them to Mr Constantinou.

[94] It was put to Mr Constantinou there’s obviously some changes in the products at the Respondent with the takeover of AXIS/Gripset and Mr Hazelwood is obviously doing construction and industrial. Mr Constantinou was asked if he saw Mr Hazelwood taking on more construction than industrial given there is not much industrial work as industrial customers have existing suppliers. Mr Constantinou replied that construction customers were to be looked after by himself and Mr Hazelwood, but Mr Hazelwood’s focus was on growing industrial.

[95] Mr Constantinou was asked when a budget was provided to Mr Carroll. He said they had a meeting probably about the middle of the year. He said Mr Carroll started in March so the sales for that first part of the year weren’t evident.

[96] Mr Constantinou was asked whether in 2020, there were updates to that budget so Mr Carroll would know exactly where he was sitting against budget and sales. Mr Constantinou said Mr Carroll had access to the phocas system and he could access this every day.

[97] Mr Constantinou said he was confident Mr Carroll had training to access phocas. He said not only was he trained but another of his colleagues in Queensland was trained in phocas.

[98] In relation to the TMR project, Mr Constantinou accepted there was a directive from the Managing Director that that project be completed by the end of the year, however he said TMR was only a small proportion of the business and the focus was to be on existing areas.

[99] Mr Constantinou stood by his written evidence that there is no one person looking after construction Queensland. He said a lot of the work is shared by the other reps. He agreed there are still customers needing to be serviced.

[100] The Respondent submitted no person has been employed to perform the position of Sales Manager Construction in Queensland, though the Respondent conceded some of those duties are now shared between Mr Hazelwood and Mr Constantinou.

[101] The Respondent submitted the decision to make Mr Carroll’s role redundant was purely based on the business needs of the organisation as a whole and not based on performance issues.

[102] The Respondent submitted it needed to run the business efficiently and they believed that unfortunately the construction industry did not need a full-time role, however, saw an opportunity to expand the industrial division. It submitted it saw a person with 18 years’ experience to both grow the business and assist the NSW industrial manager.

[103] The Respondent submitted because of Mr Hazelwood’s experience in waterproofing it was understood that it could not waste that experience and the Respondent needed that experience in maintaining its construction customers, but he was employed as the manager of industrial.

[104] The Respondent submitted they were openly transparent with Mr Hazelwood when he joined the organisation that it was as Manager Industrial/Construction and not Construction.

[105] The Respondent submitted LinkedIn is not a tool that the Respondent has control over. A person can put on LinkedIn whatever they want.

[106] In relation to Mr Carroll’s submission that he was not offered support, the Respondent submitted Mr Carroll was treated like any other employee during Covid.

[107] The Respondent submitted that the meeting in February 2021 between Mr Ingle and Mr Carroll was not a social chat, it was an opportunity to find out from Mr Carroll the state of play and to give him an opportunity to put forward ideas to improve the situation. It submitted Mr Carroll was also given an opportunity at the final meeting to raise initiatives or ideas to maintain the job, though Mr Carroll did not offer any. The Respondent disputes it was said that nothing that was said would make a difference.

[108] Mr Carroll submitted it was hard to swallow that the position he held and the customers he was responsible for is now given to a new employee not existing employees or spread amongst a number of employees.

[109] I am satisfied on the basis of the evidence of Mr Ingle and Mr Constantinou that it is apparent that the Respondent made a decision that it no longer required the position of Sales Manager - Construction (Qld) following a review of its business operations and organisational requirements. The evidence supports the finding that the decision was based on its disappointment in sales figures in the Queensland Construction Division of the business.

[110] It is also reasonably clear from the evidence that separately from that decision, the Respondent had also made a decision to acquire the AXIS/Gripset business in March 2021 around the same time it was reaching its decision regarding the Construction Division in Queensland, and this became the catalyst for a further decision to attempt to expand the Industrial Division of its business in Queensland. The decision to attempt to focus on the Industrial Division in Queensland lead to a decision to create a new position of Sales Representative - Industrial/Construction (Qld) which was subsequently filled by Mr Hazelwood.

[111] Under the restructure it was decided that as National Business Manager – Construction, Mr Constantinou would take primary responsibility for existing construction customers in Queensland, and he would be assisted by Mr Hazelwood whose primary responsibility was to attempt to expand the Industrial area of the business given his previous experience in that area.

[112] It is understandable that Mr Carroll could form a belief that Mr Hazelwood had effectively moved into his former role given some inconsistency in the representation by Mr Hazelwood’s of the job title of his new role. However, Mr Hazelwood’s employment contract made clear the role had an Industrial focus, and this is supported by the evidence. On that basis it is clear it was a different role to the role of Sales Manager - Construction (Qld), and it is clear that the Sales Manager – Construction (Qld) role is no longer being performed by any person.

[113] On the basis of the findings above the Respondent satisfied the requirements of s.389(1)(a).

Section 389 (2) – Would it have been reasonable in all the circumstances for Mr Carroll to be redeployed within: (a) the employer’s enterprise; or (b)the enterprise of an associated entity of the employer?

[114] The Respondent submitted that at that time it acquired AXIS/Gripset, it was also brought to the attention of the Respondent that an experienced waterproofing/industrial sales representative had been interviewed by AXIS/Gripset and was thought to be a valuable employee to join the Respondent and expand the Industrial Division in Queensland.

[115] The Respondent submitted that in considering the recruitment of a Sales representative for the Industrial Division, it was noted that the Respondent did not have a presence in Queensland with the industrial market and with the introduction of the AXIS/Gripset products, this was a business opportunity. It was also noted that the Business Manager - Industrial, who is based in New South Wales was suffering from a personal illness and was on extended sick leave. The appointment of a new person would also assist in covering his responsibilities. As such the Respondent submitted that a recruitment process commenced with regard to the employment of that person in the position of Sales Representative Industrial/Construction (Qld).

[116] The Respondent submitted that this process was completely independent of any review of the Construction Division, which Mr Carroll was employed in.

[117] The Respondent submitted that although Mr Carroll has claimed that he would have been happy to take on extra training in the areas he was not familiar, his skills and experience did not meet the requirements of the Sales Representative role and it was clear that learning the new products, technology applications and the markets, would take significant time. The Respondent submitted that the new appointee, has in excess of 18 years' experience in the applicable business areas/operation.

[118] The Respondent submitted that Mr Hazelwood was engaged due to his strong knowledge of water proofing, sealants, adhesive and industrial applications which were areas the company was seeking to expand in Queensland. The Respondent submitted that Mr Hazelwood would seek to be involved in the construction industry if that was part of his business contacts. The Respondent submitted that Mr Hazelwood’s contract is clearly as a Sales Representative Industrial (QLD), which is not a position that it was thought appropriate or suitable or within the skill and competence of Mr Carroll.

[119] Mr Carroll submitted initially he was not aware of any positions available at the time of his redundancy. However, said it was brought to his attention that Mr Hazelwood had been employed and that a new position was available. Mr Carroll submitted it was clear based on a copy of the signed employment contract on the 24 March, 2021 that there was another position available some weeks prior.

[120] Mr Carroll submitted that he already had knowledge of the construction products and technology, and the customer base in construction and was confident on company processes and procedures that Mr Hazelwood would need to learn.

[121] Mr Carroll submitted that whether the employer believed he was suitable for the newly added/adjusted position or not, it is very clear that Mr Hazelwood will be performing tasks that are specifically construction related as pointed out in the company staff movement’s announcement.

[122] Mr Carroll maintained that he could have done the job Mr Hazelwood was employed in with training. He said the training would be in the technical aspects on the products and he anticipated it would have taken about two months.

[123] Mr Carroll accepted he was on a package of $95,000 and had a car and a laptop, whereas the salary for Mr Hazelwood was less at $90,000 including a car. Mr Carroll said he would have accepted the job despite the lower salary.

[124] Mr Carroll was asked if he could shed some light on the difference between his skills and those of Mr Hazelwood, given the Respondent’s submission that Mr Hazelwood had 18 years’ experience. Mr Carroll said the only difference was in the technical element due to his trade, so Mr Hazelwood knows more about the technical aspects of the products they were selling.

[125] Mr Ingle was asked what the difference was in skills and experience between Mr Hazelwood and Mr Carroll. Mr Ingle said Mr Hazelwood had significant experience in sales. He said during the acquisition period he had discussions with AXIS/Gripset, and they had spoken to Mr Hazelwood sometime beforehand and when Mr Ingle mentioned expansion of the industrial area in Queensland, Mr Hazelwood was put forward as a very suitable applicant. Mr Ingle said he had waterproofing, industrial experience, construction experience, and he had technical experience and it was too good an opportunity to pass up. Mr Ingle said it is a market the Respondent intended to grow and since that time they have made an offer to someone who has accepted to expand into Victoria.

[126] Mr Ingle was asked what Mr Carroll’s status was as at 24 March 2021, and whether Mr Carroll was in the mind of the Respondent for redeployment. Mr Ingle said they were focused on an industrial role and Mr Hazelwood was suited to that role. He said they considered other areas for Mr Carroll but there just wasn’t the opportunity and they didn’t feel he was suitable for the industrial role.

[127] In relation to training, Mr Ingle was asked how long he thought it would be before Mr Hazelwood would be up to speed. Mr Ingle said Mr Hazelwood understood the Respondent, he had significant sales experience, he was employed due to length of experience and therefore his induction and orientation would have taken some time, though could not say for how long. He said COVID-19 impacted face to face training.

[128] Mr Ingle was asked from a Human Resources perspective concerning redundancies, whether there was a skill set analysis done with Mr Carroll. Mr Ingle said yes that the Respondent understood Mr Carroll’s background and skills, and they knew what his functions were and what he was doing, and were aware of his past experience.

[129] Mr Constantinou was asked in his experience how long it would take Mr Carroll to upskill to sell the industrial products. Mr Constantinou said it would take two to three years to understand the customer base and the products. He said it’s not like ‘you can just walk in there’ like construction.

[130] Mr Constantinou was asked why it would take that long and he replied it was a very competitive market and that customers have established suppliers and it takes time. When asked how long it would take Mr Hazelwood Mr Constantinou replied that Mr Hazelwood already has experience in the area so he has experience with the customers.

[131] Mr Constantinou said there were a handful of existing industrial customers in Queensland with potential to grow that part of the business. Mr Constantinou was asked if Mr Carroll was not capable of learning those products. Mr Constantinou said no and that he didn’t even think he could do it himself as it is very specialised. Mr Constantinou said in his interview Mr Hazelwood demonstrated he had that knowledge, and the Respondent said it did not have the time for Mr Carroll to learn the industrial aspects of the new role.

[132] In determining whether it would have been reasonable for the Respondent to have redeployed Mr Carroll into the new Sales Representative - Industrial/Construction (Qld) role it is appropriate to have regard to matters such as the nature of the position, the qualifications required to perform the job, the employee’s skills, qualifications and experience and the remuneration offered.

[133] It is apparent from the evidence that Mr Carroll did not possess the skills and competence to perform the role immediately, however it is Mr Carroll’s case that in all of the circumstances it would have been reasonable for the Respondent to have retrained him and this would have only taken in the order of two months.

[134] I have been persuaded by the evidence of Mr Ingle and Mr Constantinou that the specialised skills and knowledge required in order to meet the objective of the new role of expanding the Respondent business in the industrial area in Queensland were different to the Mr Carroll’s existing skill set, and it would have taken considerably longer for him to acquire the skills and knowledge then claimed by Mr Carroll. Given the Respondent’s rationale for creating the new position, I am satisfied that would not have been reasonable in all of the circumstances that Mr Carroll be redeployed into the new role, and the Respondent was entitled to employ a new employee that possessed the skills and knowledge required for the new role.

[135] There was no evidence to support a conclusion that there was another position available that Mr Carroll could have been redeployed into, either within the Respondents own business or an associated entity of the Respondent.

[136] On the basis of the findings above the Respondent has satisfied the requirements of s.389(2).

CONCLUSION

[137] As the Respondent has satisfied each of the requirements of s.389 of the Act that are relevant in this case, the dismissal of Mr Carroll was a case of genuine redundancy. On that basis the application is not within jurisdiction and is dismissed.

COMMISSIONER

Appearances:

Mr A. Carroll and Ms S. Carrot for the Applicant.
Mr P. Ingle for the Respondent.

Hearing details:

2021,
Brisbane:
12 July

Printed by authority of the Commonwealth Government Printer

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