Amnon Rosenfeld v United Petroleum Pty Ltd T/A United Petroleum
[2012] FWA 3760
•2 MAY 2012
[2012] FWA 3760 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Amnon Rosenfeld
v
United Petroleum Pty Ltd T/A United Petroleum
(U2011/13440)
COMMISSIONER RYAN | MELBOURNE, 2 MAY 2012 |
Application for unfair dismissal remedy - whether termination harsh, unjust or unreasonable..
[1] This is the second decision of the Tribunal issued in relation to the application in this matter. On 22 March 2012 I issued a decision, [2012] FWA 2445, which held that the dismissal of the Applicant from his employment with the Respondent was not a case of a genuine redundancy. Following that decision the application was referred back for conciliation which was unsuccessful. The application came back to me to deal with the merits of the application at a hearing on 30 April 2012.
[2] The facts of the dismissal of the Applicant are set out in the first decision.
[3] At the hearing on 30 April 2012 additional evidence was given by the Applicant and by Mr Toey for the Respondent. Most of the evidence of both witnesses went to the issue of mitigation of loss by the Applicant. The evidence was only relevant to issues which arise under s.392 of the Act.
[4] The Applicant contended that the Respondent’s offer to the Applicant for employment as a Property Officer only a month after the Applicant was dismissed establishes that the dismissal was never a real redundancy situation but was contrived. This contention is not sustainable given the evidence in this matter.
[5] Nothing has been put by the Applicant which challenges the validity of the decision of the Respondent to restructure its Property division in late 2011.
Mr Millar for the Respondent contended I should follow the decision of Watson VP in Maswan v Escada Textilvertrieb T/A ESCADA 1 where the Vice President said:
“[37]The failure to notify and consult with Mr Maswan in accordance with the award is a serious defect in the procedure. If the outcome of consultation was less predictable the failure to consult over proposed changes could render the termination unfair. However, the decision to terminate appears to be rational and justified. Clearly Escada needed a strong performer with all of the requisite skills in the merged role in order to turn around a poor trading history. It did not consider that Mr Maswan was that person. It found a good candidate who accepted the offer of employment. It therefore made the business decision to make Mr Maswan’s position redundant and terminate his employment for that reason. It advised him of the reason, but not until it was in the process of implementing his termination.”
and
“[39]In my view a decision to dismiss on account of redundancy will only be harsh, unjust or unreasonable if the rationale for the decision is seriously undermined or if there is a serious error in procedure such that renders the termination unfair in the circumstances. Here the decision appears open to the employer to make. The failure to consult is not a trivial matter. But as it is clear that consultation was highly unlikely to have negated the operational reasons for the dismissal or lead to any other substantive change, I do not believe that the failure to consult prior to the date of termination rendered the dismissal unfair. Given the evidence in relation to the operational need to restructure, I am of the view that it is likely that Mr Maswan would have been dismissed in any event, even if timely consultation had occurred.”
and
“[42] I also find that the termination of his employment is not harsh, unjust or unreasonable as the decision was the result of a soundly based business decision to restructure the operations and merge two positions. The failure to consult did not lead to a different conclusion to that which would have, in all likelihood, been reached had consultation occurred. Therefore this failure does not render the dismissal unfair. The application is dismissed.”
[6] In the present matter it is clear that the failure to consult rendered the dismissal a case of not being a genuine redundancy within the meaning of s.389 of the Act. However that finding does not imply that the decision by the Respondent to restructure the Property division was not a soundly based business decision.
[7] The Applicant was dismissed because the Respondent had employed a new senior manager with skills that no existing employee had. The Respondent restructured the Property division by moving duties from Mr Anastasiou, the Applicant’s immediate manager, to the new senior manager and then in turn moving all of the Applicant’s duties to Mr Anastasiou.
[8] The evidence in this matter supports the finding that the dismissal of the Applicant was because of this restructuring of the Property division. The fact that Mr Anastasiou resigned his employment about a month after the restructuring occurred does not impugn the original restructuring decision of the Respondent. That decision must be considered on its own in the context of the factors which led the Respondent to make that decision. Equally the fact that, after Mr Anastasiou resigned his employment, the Respondent offered to employ the Applicant to perform his original job but on a different remuneration package cannot be used to impugn the original decision to restructure the Property division and dismiss the Applicant.
[9] In all of the circumstances of the present matter the decision to dismiss the Applicant as a result of the restructure of the Property division was sound, well founded and defensible as the restructure of the Property division including the employment of a new senior manager was based on clear operational imperatives of the Respondent.
[10] The Respondent had a valid reason for the dismissal of the Applicant. (s.387(a))
[11] The Applicant was notified of the reason for dismissal. (s.387(b))
[12] To the extent that the decision to dismiss the Applicant related to the capacity of the Applicant to do the work that the Respondent required to be done under the restructure of the Property division, namely the whole of the job of Mr Anastasiou, it is clear that the Applicant was not given an opportunity to respond to such reasons for dismissal. However having said that, I do not consider that giving the Applicant an opportunity to respond would have altered the decision of the Respondent given that Mr Anastasiou could do all of the Applicant’s work but the Applicant was not an experienced manager as was Mr Anastasiou.(s.387(c))
[13] There was no unreasonable refusal by the Respondent to allow the Applicant to have a support person present to assist at any discussions relating to the dismissal. (s.387(e))
[14] The Respondent is both a large employer and has dedicated in-house HRM expertise and the procedures followed by the Respondent reflect this. Their effect is neutral when considering whether the dismissal is harsh unjust or unreasonable. (s.387(f) and (g))
[15] There are no other relevant matters that I need consider. (s.387(h))
[16] Having considered all of the criteria of s.387 I conclude that the dismissal of the Applicant as a result of the decision of the Respondent to restructure the Property division was neither harsh, unjust nor unreasonable.
[17] I therefore dismiss the application. An order dismissing the application will issue separately.
COMMISSIONER
Appearances:
A. Rosenfeld on his own behalf
R. Millar, of Counsel, for the Respondent
Hearing details:
2012
Melbourne
30 April
1 [2011] FWA 4239
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