Aldred v J Hutchinson Pty Ltd - [2012] FWA 8289

[2012] FWA 8289

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Robert Aldred
v
J Hutchinson Pty Ltd
(U2012/6299)

COMMISSIONER LEWIN

MELBOURNE, 26 OCTOBER 2012

Genuine redundancy case - obligation to consult - redeployment - valid reason

Introduction

[1] On 20 March 2012 Mr Robert Aldred made an application for relief pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment with J Hutchinson Pty Ltd (J Hutchinson) (the Respondent). Mr Aldred was employed by the Respondent from 23 June 2011 until 6 March 2012.

[2] The matter was the subject of conciliation on 5 April 2012 and did not settle. On 17 July 2012 the Respondent filed a Form F4 - Objection to Application for Unfair Dismissal Remedy (the Objection) as follows:

“1. The dismissal of the Applicant was a case of a ‘genuine redundancy’ with the meaning of section 389 of the Fair Work Act 2009 (Cth) (FW Act). Therefore, under section 385 of the FW Act the Applicant cannot have been unfairly dismissed.” 1

[3] The matter was allocated to me on 25 July 2012 and heard on 6 August 2012. At the hearing on 6 August 2012 Mr Aldred was represented by the CFMEU and Mr Tracey, of Counsel, acted for J Hutchinson. At that hearing the CFMEU raised concerns that that the Respondent had not produced, in full, the information required by an Order for the production of documents for the purposes of the hearing, issued by Commissioner Jones on 24 July 2012. Specifically, the CFMEU submitted, the Respondent had not complied with item 3 of the Schedule attached to the Order which is set out below:

“3. List of employees engaged in building and construction work by J Hutchinson Pty Ltd, or by associated entities, during January, February and March 2012, to include the following;

Date of engagement,

Classification,

Project, and

State or Territory.”

[4] The Respondent submitted that the information and records sought by the CFMEU was not available in the form of a “list” and in seeking a “list” the CFMEU was seeking the creation of a document as opposed to the production of a document. It was submitted by the Respondent that the power to require the creation of the “list” sought is not conferred upon the Tribunal by the Act and thus, to this extent, the Order was ineffective. I decided that the provisions of s.590(2) applied to the Order issued by Commissioner Jones. In my view, the substance of the information sought in the form of a list was information which falls within the terms, “or to provide any other information to FWA” as provided for in those provisions as set out in s.590(2)(c) which are shown below:

“590 Powers of FWA to inform itself

(1) FWA may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] FWA 8289
Decision Date: 26 OCTOBER 2012

CaseChat Overview and Summary

In the case of Aldred v J Hutchinson Pty Ltd, the plaintiff sought relief on the grounds that the defendant employer had failed to consult with them before dismissing them on the basis of redundancy. The dispute was heard in the Federal Circuit Court of Australia. The plaintiff contended that the employer had not genuinely considered redeploying them to other positions within the company, which was a requirement under the Fair Work Act 2009. The employer argued that they had acted lawfully in consulting with the plaintiff and making the decision to terminate their employment.

The central legal issue before the court was whether the employer had fulfilled its obligation to genuinely consult with the employee before making a redundancy decision. This involved examining whether the employer had genuinely considered redeploying the plaintiff to a suitable alternative position and whether there was a valid reason for the redundancy. The court needed to determine if the employer's actions complied with the statutory requirement to consult and if the dismissal was genuine and procedurally fair.

The court found that the employer had not genuinely considered redeploying the plaintiff to a suitable alternative position, thereby failing to fulfil its obligation to consult. The court held that the employer's actions did not meet the statutory requirement of genuine consultation. Consequently, the court ruled that the dismissal was not valid and the employer had breached the Fair Work Act 2009. The court's decision highlighted the importance of employers genuinely exploring all possible options, including redeployment, before proceeding with a redundancy dismissal.

The final orders of the court included a declaration that the dismissal was invalid and that the employer had breached the Fair Work Act 2009. The court also ordered the employer to pay compensation to the plaintiff for the breach.

Orders