Blake Sorensen & Nadhum Wijeyasiri v Metro Trains Melbourne Pty Ltd T/A Metro Trains Melbourne
[2022] FWC 2460
•19 SEPTEMBER 2022
| [2022] FWC 2460 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Blake Sorensen & Nadhum Wijeyasiri
v
Metro Trains Melbourne Pty Ltd T/A Metro Trains Melbourne
(U2022/3560, U2022/3167)
| COMMISSIONER BISSETT | MELBOURNE, 19 SEPTEMBER 2022 |
Application for an unfair dismissal remedy – failure to meet requirements of public health order – failure to comply with lawful and reasonable direction – valid reason for dismissal – dismissal not harsh, unjust or unreasonable – applications dismissed.
The Fair Work Commission has received applications (unfair dismissal applications) from Mr Blake Sorenson (U2022/3560) and Mr Nadhum Wijeyasiri (U2022/3167) (together the Applicants) in which each claim to have been unfairly dismissed by Metro Trains Melbourne Pty Ltd T/A Metro Trains Melbourne (Metro Trains). The Applicants were dismissed as a result of Metro Trains’ implementation of the Directions issued by the Acting Chief Health Officer in Victoria in relation to the requirement to show evidence of having received vaccinations or have an appropriate exemption in order to be able to attend work. In each of the letters of dismissal the Applicants were advised that their employment was terminated as they were unable to fulfil the inherent requirements of their respective jobs and because each had failed to comply with a lawful and reasonable Direction of Metro Trains.
Metro Trains filed a Form F3 - Employer response to unfair dismissal application (Form F3) as required pursuant to the Fair Work Commission Rules.
On 10 August 2022, with the consent of the parties, I issued Directions in which I set a timetable for the Applicants and Metro Trains to file with the Commission and serve on the other party an outline of submissions and witness statements on which the parties sought to rely (Directions). It was also with the consent of the parties that the applications to be heard together.
On 24 August 2022 Mr Gareth Rogers of Reignite Democracy Australia filed, on behalf of the Applicants, submissions of 3½ page (albeit a day late). On receipt of the submissions my chambers made inquiries of Mr Rogers and, on 25 August 2022, Ms Nicole Kuth of Reignite Democracy Australia advised the Commission that it was not intended to file any witness statements of the individual Applicants.[1]
On 2 September 2022 the Commission received an application from Metro Trains in which it applied to the Commission for the dismissal of each application pursuant to s.587(1)(c) of the Fair Work Act 2009 (FW Act) on the grounds that the applications had no reasonable prospect of success (s.587 application).
I held a Mention in relation to the s.587 application on 6 September 2022. At that Mention Metro Trains indicated that it still intended to file its submissions in accordance with the Directions of the Commission due later that day, but it wished to have its s.587 application determined prior to the hearing of the unfair dismissal applications scheduled for 14 September 2022. Mr Rogers for the Applicants indicated that he “thought” that the information filed in the Form F2 – Unfair dismissal application (Form F2) forms filed by each Applicant was sufficient in relation to “evidence”. Mr Rogers said that, if the Applicants were given an opportunity to provide a reply in writing to the submissions of Metro Trains and, given there was no factual dispute between the parties, the Applicants were content for their applications to be determined by the Commission on the basis of the material filed by each party.
I subsequently issued Amended Directions on 6 September 2022 in which I provided for the Applicants to file written submissions in reply to those of Metro Trains. As no evidence was filed I indicated that, pursuant to s.397 of the FW Act, I did not consider it necessary to hold a hearing but could determine the applications based on the material filed.
SUBMISSIONS
Applicants
The Applicants’ submissions are not complex. They say that, by requiring employees to be vaccinated to lawfully attend work, Metro Trains unilaterally altered the Applicants’ jobs to add a new regulatory requirement. The Applicants’ rely on a remark (but not other reasoning or the decision reached) made by Deputy President Colman in Stevens v Epworth Foundation[2] (Stevens) where (they say) “the Deputy President found that “the Victorian Directions had the effect of adding a ‘new regulatory requirement’ to the applicant’s role” .”[3] The Applicants say that this additional regulatory requirement has been added to their roles and this has led to each of them being unable to do their jobs.
The Applicants also rely on the decision in Eaton v Craveable Brands[4] (Eaton) where Deputy President Easton noted:
[27] Section 389(1)(a) of the FW Act refers to an employer making a decision about an employee’s “job”. A job involves “a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employees’ organisation, to a particular employee”.[5]
[28] The test is not whether the functions or duties themselves continue,[6] but whether the “job” itself survives. What is said to be critical for the purpose of identifying a redundancy is whether the employee has any duties left to discharge after the re-organisation. If there is no longer any function or duty to be performed by that employee, his or her “job” is redundant.[7]
The Applicants also rely on the decision of Commissioner Hunt in Desertiaux v QGC Pty Limited[8] (QGC), considered further below.
The Applicants submit that, although the functions and duties of their positions survived, the job, as done by them, did not by virtue of an additional requirement being placed on the job, and that this is anomalous to the circumstances in Stevens.
The Applicants submit that the inability to perform their job was caused by an act of the Victorian Government (in issuing the Directions which then placed a regulatory burden on their jobs), not by some act of the Applicants. The dismissals were therefore unjust and unreasonable because the Applicants were, in fact redundant.
The Applicants submit that the Commission can rely on the information in the material in their respective Form F2 applications and on the information contained in the responses of Metro Trains in the Form F3 provided for each application. In addition, the Commission has “agreed facts” as outlined in the decision in Wendy Robinson & Others v Metro Trains Melbourne Pty Ltd T/A Metro Trains[9] (Robinson) given that the factual background in this matter is no different to that set out in Robinson. On the basis of this material, along with the submissions filed in accordance with the Commission’s Directions, the Applicants say it is possible for the Commission to determine if the dismissals were unfair.
Metro Trains
In relation to the claim for unfair dismissal Metro Trains submits that “the circumstances underpinning each of the Unfair Dismissal Applications…appear identical to those involved in the Robinson Proceedings”[10] subject to the further argument the Applicants raise that they should have been made redundant.
Metro Trains submits that a redundancy occurs in circumstances where the employer determines that it no longer requires the duties that constitute a job to be performed by anyone. It says this definition is consistent with that in s.119 of the FW Act and clause 2.5.1 of the Metro Trains Melbourne Pty Ltd Rail Operations Enterprise Agreement 2015-2019[11] (Agreement). Metro Trains submits that it required each of the Applicants to perform their job and that is why it issued a direction to each employee to take steps to enable them to return to work lawfully. Further, Metro Trains submits that the applications before the Commission do not require the Commission to determine if the Applicants were redundant but rather if the Applicants were unfairly dismissed taking into account whether a valid reason existed for the dismissal.
In relation to its s.587 application Metro Trains submits that there are two reasons why the applications have no reasonable prospect of success. First, Metro Trains submits that the Commission cannot be satisfied that the jurisdictional requirements for it to deal with the applications have been met. Secondly, Metro Trains says that, for the same reasons given in Robinson, the applications must fail.
With respect to the jurisdictional matters Metro Trains submits that, absent any evidence filed by the Applicants, the Commission cannot be satisfied that the requirements of s.385 of the FW Act (which deals with when a person has been unfairly dismissed) or s.396 of the FW Act (which deals with those matters the Commission must decide prior to considering the merits of claim) have been met.
Metro Trains submits that, if the Commission is satisfied that the jurisdictional pre-requisites for dealing with an unfair dismissal application have been met, it should dismiss the applications on the grounds that they have no reasonable prospect for success due to the circumstances in these proceedings being the same as in Robinson.
Otherwise Metro Trains submits the applications should be dismissed for the same reasons given in Robinson.
NO REASONABLE PROSPECT OF SUCCESS
The principals relevant to an application to dismiss an application on the grounds that it has no reasonable prospect of success were succinctly set out by Commissioner Whelan in Basam v Fiorelli Packing Co 2 Pty Ltd[12]:
[12] The effect of granting a motion to dismiss an application on the grounds that it is frivolous, vexatious or lacking in substance is that the substantive application is dismissed. The summary dismissal of an application, which prevents the Applicant from proceeding further, is governed by the same principles which apply to summary determination of matter by a Court.
[13] It has been generally considered that it must be very clear that the Applicant’s case could not succeed to justify the intervention of a Court to prevent the matter from proceeding further:
But once it appears that there is a real question of fact or law to be determined then it is not competent for the Court to dismiss the action as frivolous, vexatious or an abuse of process.[13]
[14] The test to be applied has been variously expressed: ‘so obviously untenable that it cannot possibly succeed’; ‘manifestly groundless’; ‘so manifestly faulty that it does not admit of argument’; ‘discloses a case which the Court is satisfied cannot succeed’; ‘under no possibility could there be a good cause of action’; ‘be manifest that to allow them (the pleadings) to stand would involve useless expense’.[14]
[15] The approach adopted by the Commission where the matter is dealt with ‘on the papers’ is to consider whether on the basis of the Applicant’s case ‘taken at its highest’ it is obvious that the case could not succeed. Where the submissions of the parties reveal conflicts of evidence, the Commission has adopted the position that there is a genuine issue of fact to be resolved.[15]
Whilst the language of section 587 may differ to that which was before Commissioner Whelan, the principals remain the same.[16] I have adopted this approach in considering the s.587 application before me.
CONSIDERATION
For the purpose of the following analysis, I have assumed that the Applicants have each met the jurisdictional requirements necessary for the Commission to deal with an unfair dismissal application. I have also assumed the same factual circumstances surrounding each dismissal are as set out by me in Robinson with appropriate adjustments made to the dates of relevant correspondence and the dates the Applicants were notified of their dismissal. This is as put by the Applicants in their submissions.
For the reasons given in Robinson (nothing having been put to the contrary before the Commission in these matters) I am therefore satisfied that:
i. There was a valid reason for the dismissal of the Applicants in that they were unable to fulfil the inherent requirements of their jobs and they failed to comply with a lawful and reasonable direction of Metro Trains that they take steps to enable them to return to work (s.387(a) of the FW Act);
ii. The Applicant were advised of the reason or their dismissal and given an opportunity to respond prior to the decision to dismiss the Applicants having been made (ss.387(b) and (c) of the FW Act);
iii. The Applicants were not denied access to a support person (s.387(1)(d) of the FW Act);
iv. The Applicants were not dismissed for reasons that went to their performance (s.387(e) of the FW Act);
v. The size of the employer’s business and access to human resources expertise had no adverse impact on the procedures in relation to the dismissals (ss.387(f) and (g) of the FW Act).
Despite all of this the Applicants submit that they should have been offered redundancy. That they were not, they say, makes the dismissals harsh and unreasonable.
The submission on the redundancy matter is that, by virtue of the decision of the Victorian State Government, the jobs they had done no longer existed. The Applicants should each have been offered redundancy in these circumstances. In support of this the Applicants rely on the decision in Stevens which they say stands for the proposition that the Victorian Directions placed a new regulatory requirement on their jobs. For this reason, they submit their “old” jobs no longer exist, they cannot do the job now because of the new requirement and they should therefore be offered redundancy.
To consider this argument I must first put aside the Applicants’ submissions that I am not bound by, and should not follow, single member decisions of the Commission. I should also put aside all of the reasoning and the actual decision in Stevens except for the 14 words on which the Applicants rely (it being notable that in Stevens the Deputy President found the dismissal not to be unfair, the applicant in that matter not having the capacity to do her job as she had not been vaccinated as required by the relevant Direction).
To the extent necessary I would observe that I am not convinced that the Applicants’ jobs are redundant. Not every change in regulatory requirements placed on a position will make the position “redundant”. If this were the case, we would have an absurd situation where every requirement for additional training or every new health and safety requirement imposed on a workplace (or a job) would mean the occupant could claim redundancy because of a “regulatory” change.
Further, I am not convinced that the decision in Stevens stands for what the Applicants say. The Deputy President in Stevens did not find that “the Victorian Directions had the effect of adding a ‘new regulatory requirement’ to the applicant’s role” as put in the written submissions of the Applicants. Their representative should take more care in written submissions in framing commentary of a decision as a direct quote from that decision. The Deputy President in Stevens said “there was in effect a new regulatory requirement”[17] attached to the job in question. The Deputy President then said that the applicant “could have decided to take the necessary steps to meet the requirement”[18] but decided not to do so, as was her right, but that choice “had the inevitable consequence that [the applicant was]…unable to perform her job.”[19] Further, to the extent the Deputy President may have considered that a new regulatory requirement was attached to the position of the applicant in Stevens, this was not a matter argued before the Commission and the Deputy President made no finding that the requirement changed the job so as to irrevocably disturb the employment contract. The Deputy President did not consider this “regulatory requirement” to be such that the job was redundant. The extent to which the decision in Stevens can be relied on to support the Applicants’ submissions is, in these circumstances, limited.
In the decision in QGC, also relied on by the Applicants, Commissioner Hunt, in determining if a redundancy was a genuine redundancy for the purposes of the FW Act, said that:
[229] The test to be considered where there has been a reorganisation or redistribution of duties is whether the employee has any duties left to discharge. Where there is no longer any function or duty to be performed by an employee, his or her position becomes redundant even where aspects of that employee’s duties are still being performed by other employees.
[Footnotes omitted]
It was within this context that the Commissioner considered the decision of the Full Bench in Ulan Coal Mines Limited v Howarth and others[20] where the Full Bench said:
[17] It is noted that the reference in the statutory expression is to a person’s “job” no longer being required to be performed. As Ryan J observed in Jones v Department of Energy and Minerals (1995) 60 IR 304 a job involves “a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employees’ organisation, to a particular employee” (at p. 308). His Honour in that case considered a set of circumstances where an employer might rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly- created positions. In these circumstances, it was said that:
“What is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the re-organisation, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position becomes redundant…” (at p.308)
This does not mean that if any aspect of the employee’s duties is still to be performed by somebody, he or she cannot be redundant (see Dibb v Commissioner of Taxation (2004) FCR 388 at 404-405). The examples given in the Explanatory Memorandum illustrate circumstances where tasks and duties of a particular employee continue to be performed by other employees but nevertheless the “job” of that employee no longer exists.
Seen within context of what Commissioner Hunt was required to determine, the decision in QGC cannot be taken to stand for the proposition that a change, such an additional regulatory requirement, must result in the occupant of the job so changed being redundant.
I also note that, under the Agreement, a job is redundant if Metro Trains “determines that a job is no longer required”[21]. Metro Trains have made no such determination and, in fact, directed the Applicants to be able to lawfully attend the workplace to do their jobs, a direction the Applicants have not complied with.
Even if I were to accept that the Directions issued by the Acting Chief Health Officer constituted an additional regulatory requirement on the jobs of each of the Applicants, the lack of evidence does not allow me to conclude that the change to the jobs was such that it could be concluded that the Applicants should have been offered redundancy. In this respect the Applicants have failed to demonstrate the connection between the additional regulatory requirement and the grounds on which it might be said they were redundant within the terms of the Agreement or otherwise. Further, the jobs of the Applicants continued to exist, there being no evidence they were abolished, or the tasks otherwise distributed such that the Applicants had no duties left to discharge.
If it is that the Applicants argue their jobs were redundant and they should have been offered redundancy it might also be construed that they raise a jurisdictional argument to their own applications. If their jobs were redundant, and that redundancy was genuine, the Commission does not have jurisdiction to deal with their applications for unfair dismissal (see s.396 and s.385 of the FW Act). I accept that the Applicants did not receive redundancy pay and were not declared redundant by Metro Trains, but that is not the matter before the Commission and, as to payment if they were, in fat, redundant, is not a matter for the Commission to deal with.
CONCLUSION WITH RESPECT TO THE SECTION 587 APPLICATION
It is appropriate that the s.587 dismissal application be considered first. Section 587 of the FW Act states as follows:
587 Dismissing applications
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
Note:For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3‑2, see section 399A.
(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.
It is well accepted that the bases on which an application may be dismissed by the Commission as set out in s.587(1)(a)-(c) do not act to limit the grounds on which the Commission may dismiss an application. The words “[w]ithout limiting when the FWC may dismiss an application” at clause 587(1) is testament to this. Section 587(3) makes it clear that an application may dismissed on application or on the Commission’s own initiative.
In this case I am satisfied that the application has no reasonable prospects of success. The Applicants make no defence of the grounds of dismissal as advised to them by Metro Trains except to make an unsupported claim that they should have been made redundant. In doing so however they fail to grapple with the direction given to them by Metro Trains (that required them to take action so that they could lawfully attend for work) which, in other proceedings of which they are well aware, the Commission has found that direction to be lawful and reasonable. In this case they do no argue otherwise yet conveniently ignore the apparent conflict between that direction and their claim that they should have been offered redundancy.
CONCLUSION WITH RESPECT TO UNFAIR DISMISSAL APPLICATIONS
For the avoidance of any doubt I do not consider that the Applicants were unfairly dismissed.
The circumstances that pertain to the Applicants’ dismissals are the same as those in Robinson. To the extent either Applicant raises issues in their Form F2 application about questions not answered by Metro Trains or leave they could have taken, the same issues were dealt with in Robinson. Neither Applicant provided any written evidence or sought to give oral evidence in these proceedings as to how these issues might make their dismissal otherwise harsh, unjust or unreasonable. In these circumstances, relying on the Applicants’ cases alone, I am not satisfied that the dismissal of the Applicants was harsh, unjust or unreasonable. The Applicants were therefore not unfairly dismissed, and their applications are dismissed.
CONCLUSION
An order[22] dismissing the applications pursuant to s.587(1)(c) of the FW Act will be issued with his decision.
COMMISSIONER
[1] A third application was filed however this application was withdrawn after submissions were received.
[2] [2022] FWC 593
[3] See Applicants’ written submissions filed 24 August 2022, paragraph 5; and the Applicants’ final submissions filed on 13 September 2022, paragraph 13
[4] [2021] FWC 6705
[5] Ulan Coal Mines Limited v Henry Jon Howarth and others (2010) 196 IR 32, [2010] FWAFB 3488 at [17] citing Jones v Department of Energy and Minerals (1995) 60 IR 304 at 308
[6] Kekeris v A. Hartrodt Australia Pty Ltd T/A a.hartrodt [2010] FWA 674 cited in Ulan Coal Mines Limited v Howarth (2010) 199 IR 32, [2010] FWAFB 3488 at [18]
[7] Jones v Department of Energy and Minerals (1995) 60 IR 304 at 308
[8] [2021] FWC 6579 at [230]
[9] [2022] FWC 1614
[10] Wendy Robinson & Others v Metro Trains Melbourne Pty Ltd T/A Metro Trains[2022] FWC 1614
[11] AE417210
[12] [2009] AIRC 328
[13] Dixon J, Day v Victorian Railways Commission (1949) 78 CLR 62
[14] Barwick CJ, General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
[15] See Fullerton v Gimbalen Pty Ltd t/as Coolibah Hotel [PR972004]; and Wallach v Venturin Nominees Pty Ltd [PR974503]
[16] See also Tracey v BP Refinery (Kiwana) Pty Ltd [2021] FWCFB 4970 at [21] for a discussion of the principals relevant to a consideration of an application that has “no reasonable prospect of success”. Whilst this was in the context of an application for costs pursuant to s.611 of the FW Act the language and underpinning principles are the same as that in s.587 of the FW Act
[17] [2022] FWC 593, at [24]
[18] Ibid
[19] Ibid
[20] [2010] FWAFB 3488
[21] AE417210, cl. 2.4.1
[22] PR745858
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