Brandy v BMD Constructions Pty Ltd

[2016] FWC 1608

[2016] FWC 1608

DECISION

Fair Work Act 2009
s.394—Unfair dismissal
Jesse Brandy
v
BMD Constructions Pty Ltd
(U2015/8331)
COMMISSIONER JOHNS	SYDNEY, 11 MARCH 2016

Application for Relief of Unfair Dismissal – genuine redundancy – identification of job made

redundant – consultation – declined redeployment.

Introduction

[1]        On 9 June 2015, Jesse Brandy (Applicant) made an application pursuant to s.394 of

the Fair Work Act 2009 (FW Act) for an unfair dismissal remedy. The respondent is BMD

Constructions Pty Ltd (BMD /Employer/Respondent).

[2]        The respondent claimed that there had been a genuine redundancy and that pursuant to

section 385(d) of the FW Act there was no remedy for unfair dismissal available to the

Applicant.

[3]        The respondent’s jurisdictional objection was upheld by then Vice President Lawler

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who dismissed the application in transcript .

[4]        The Applicant appealed the decision of the Vice President to a Full Bench of this

Commission. The Full Bench in quashing his Honour’s decision at first instance remitted the

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matter to the Commission, as presently constituted.

[5]        Following the Full Bench decision, the parties agreed that the Commission, as

presently constituted, would, on the re-hearing, only determine whether the termination of the

applicant’s employment was harsh, unjust or unreasonable. If it was determined that the

dismissal was unfair, the matter was to be programmed further in relation to the question of

remedy. The Commission then programmed the making of final submissions based on the

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evidence heard by the Vice President.

[6]        At the original hearing conducted on 10 September 2015, the Applicant was

represented by Mr P Quinn from the NSW Construction, Forestry, Mining and Energy Union

(CFMEU) and BMD was represented by Mr G Power from Drayton’s Workplace Consulting.
[2016] FWC 1608

Permission was granted to each party to be represented because the Commission as presently

constituted was satisfied that the matter was invested with sufficient complexity such that the

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matter would be proceed more efficiently if the parties were represented .

[7]        Mr G Power called one witness, that being Mr David Lightfoot, who was examined in

chief, and subsequently cross examined by Mr P Quinn.

[8]        Mr P Quinn called two witnesses, the first being the Applicant Mr J Brandy and the

second being Mr Lightfoot Martin Curtain employed as a State Organiser for the CFMEU.

[9]        The following matters are either agreed upon or not otherwise contested by the parties:

a)	On 23 June the applicant commenced employment with the respondent.
b)	The respondent is a construction and land development company: Mr Lightfoot is a

BMD Project Manager of the Terrigal Drive Intersection Upgrade. Mr Steven Thomas

is the Human Resources manager of BMD.

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c)	The applicant was not employed for a specific role or task.
d)	In or about the time the applicant was dismissed, the respondent had 1,400 employees.
e)	On the 18 of May 2015 Scott Insell (General Foreman) and Mr Lightfoot held a

meeting, at which it was decided that applicant would be dismissed.

f) On 25 May 2015, 2015 Mr Insell, Mr Lightfoot held a meeting with the applicant, at

which they gave him a written notice of redundancy.

g)	Subsequently, the applicant was dismissed
h)	In the weeks prior to the dismissal, toolbox meetings were held at the workplace, at

which representatives of the respondent made mention to the impeding changes in the

work place.

i)     The applicant filed an unfair dismissal application on the basis that he should have

been offered the job elsewhere.

Protection from Unfair Dismissal

[10] An order for reinstatement or compensation may only be issued where the

Commission is satisfied the applicant was protected from unfair dismissal at the time of the

dismissal. In the present matter this is not an issue in dispute in the proceeding, the respondent

concedes the same.

[11]      Section 382 sets out the circumstances that must exist for the applicant to be protected

from unfair dismissal.

[2016] FWC 1608

[12]      There is no dispute, and the Commission as presently constituted is satisfied, the

applicant has completed the minimum employment period, and is covered by an agreement,

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namely the BMD Constructions Pty Ltd New South Wales Enterprise Agreement 2014 (EA).

In any case the applicant earned less than the high income threshold. Consequently, the

Commission, as presently constituted, is satisfied the applicant was protected from unfair

dismissal.

[13]      I will now consider if the dismissal of the applicant by the respondent was unfair

within the meaning of the Act.

Was the dismissal unfair?

[14]      A dismissal is unfair if the Commission is satisfied, on the evidence before it, that all

of the circumstances set out at s.385 of the FW Act existed. Section 385 provides the

following:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.”

Was the applicant dismissed?

[15]      A person has been unfairly dismissed if the termination of their employment comes

within the definition of “dismissed” for purposes of Part 3–2 of the FW Act. Section 386

contains the relevant definition. In this present matter this is not an issue in dispute in the

proceeding, the respondent concedes the same.

[16]      Consequently, the Commission, as presently constituted, finds that the applicant was

dismissed from his employment with the respondent within the meaning of s.386 of the FW

Act.

Was the dismissal consistent with the Small Business Fair Dismissal Code?

[17]      A person has not been unfairly dismissed where the dismissal is consistent with the

Small Business Fair Dismissal Code (the Code). However, the Code is only relevant if the

valid reason for the termination asserted by the small business employer relates to summary

dismissal, conduct or performance. None of these are relevant in the present matter.

Consequently, compliance with the Code is not a relevant consideration.

Was the dismissal a genuine redundancy?

[18] In quashing the decision of the Vice President, the Full Bench determined that the

dismissal of the applicant was not a genuine redundancy.
[2016] FWC 1608

Harsh, unjust or unreasonable

[19] Having been satisfied of each of s.385 (a), (c) and (d) of the Act, I must consider

whether I am satisfied the dismissal was harsh, unjust or unreasonable. The criteria the

Commission must take into account when assessing whether the dismissal was harsh, unjust

or unreasonable are set out at s.387 of the Act:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must

take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or

conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the

capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person

present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person

had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the

procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or

expertise in the enterprise would be likely to impact on the procedures followed in effecting the

dismissal; and

(h) any other matters that the FWC considers relevant.”

[20]      Normally I would be under a duty to consider each of these criteria in reaching my

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conclusion. However, because the dismissal was not a case of genuine redundancy the

consideration of the matters specified in s.387 (a), (b) and (c) are neutral, unless in the

circumstances another valid reason is identified. No other valid reason was identified by the

respondent. Matters arising from the redundancy; such as the failure to consult fall within

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s.387 (h).

[21]      For completeness I will now consider each of the criteria at s.387 of the Act

separately.

Valid reason - s.387(a)

[22]      The reasons for the dismissal of the applicant were not related to his capacity or

conduct. Accordingly there cannot have been and there was not a valid reason for his

dismissal related to his capacity or conduct. In the circumstances of this case and, against the

submissions of the applicant, I regard this element of s.387 as a neutral matter with respect to

my consideration as to whether the dismissal of the applicant was harsh, unjust or
[2016] FWC 1608

unreasonable.

Notification of the valid reason and opportunity to respond - s.387(b), (c)

[23] The matters in s.387(b) and (c) of the FW Act deal with whether there was procedural

fairness in respect of a reason for dismissal related to capacity or conduct. The dismissal of

the applicant was not related to capacity or conduct. In the circumstances of this case I regard

this element of s.387 as a neutral matter with respect to my consideration as to whether the

dismissal of the applicant was harsh, unjust or unreasonable. This is conceded in the final

outline of submissions of the applicant.

Unreasonable refusal by the employer to allow a support person - s.387(d)

[24]      Where an employee protected from unfair dismissal requests a support person be

present to assist in discussions relating to the dismissal, the employer should not unreasonably

refuse that person being present.

[25]      In the present matter the applicant was not provided with an opportunity to bring a

support person to the meeting on 25 May 2015. It would have been decent had he been

provided with such an opportunity. However, the failure to provide the applicant with an

opportunity to bring a support person does not constitute an unreasonable failure to refuse the

same. In the circumstances of this case I regard this element of s.387 as a neutral matter with

respect to my consideration as to whether the dismissal of the applicant was harsh, unjust or

unreasonable.

Warnings regarding unsatisfactory performance - s.387(e)

[26]      The dismissal of the applicant did not relate to his unsatisfactory performance, so this

matter is not relevant to my consideration as to whether the dismissal was harsh, unjust or

unreasonable. In the circumstances of this case I regard this element of s.387 as a neutral

matter with respect to my consideration as to whether the dismissal of the applicant was

harsh, unjust or unreasonable.

Impact of the size of the Respondent on procedures followed and Absence of dedicated human

resources management specialist/expertise on procedures followed - s.387(f), (g)

[27]      The size of a respondent’s enterprise may impact on the procedures followed by it in

effecting a dismissal. Further, the presence of dedicated human resource management or

expertise in a respondent’s enterprise should ensure a higher standard of management of

human resources.

[28]      The respondent had approximately 1,400 employees in its enterprise at the time of the

applicant’s dismissal. The size of the respondent’s organisation invites the prospect there is a

dedicated Human Resources (HR) Team. This is confirmed in the evidence of Mr Lightfoot:

‘You are asking me did I have any communication with the hierarchy and HR about a

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downgrade in workforce? I think I did.

…

[2016] FWC 1608

Yes, I’ve got a couple here on 18 May where I ask HR - I say, “Look, HR, I’ve currently

got to labourers at the moment who can now be released from this job. Can you assist

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with finding them other work within the business”

…

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I don’t know what happens at the HR world after I send this…

…

I then made the call and then pushed that information up the chain to notify HR and my

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direct manager”

[29]      Having a dedicated HR team, in which the respondent’s witness Mr Lightfoot made

regular inferences to upon giving his evidence, the respondent’s approach in advising the

applicant of his dismissal on the same day falls short of what would be considered appropriate

action of an enterprise as large as BMD.

[30]      Further, Mr Steve Thomas (Human Resources Manager) was aware of the dismissal

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and put on notice by Mr Lightfoot , affirming that the respondent could not claim a lack of

dedicated human resources specialists had affected the employer’s ability to properly deal

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with the matter of the applicant’s dismissal .

[31]      In all the circumstances it is apparent that the size of the respondent did not have any

adverse effect on the procedures it adopted in dismissing the applicant. In fact it could have

been expected that an employer such as the respondent, with the resources it had at its

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disposal, would have done better.

[32]      In the circumstances of this case I regard this element of s.387 as telling in favour of

determining that the dismissal of the applicant was harsh, unjust or unreasonable.

Other relevant matters - s.387(h)

[33]      Section 387(h) provides the Commission with a broad scope to consider any other

matters it considers relevant. I consider the following matters to be relevant to the

determination of whether the dismissal of the applicant was harsh, unjust or unreasonable:

a. The respondent submitted that, the decision to dismiss the applicant was

sound, defensible and well founded because it was directly connected with the

restructure of the worksite in relation to the ‘switch’ of traffic direction to the

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northern side of the road	. Mr Lightfoot’s evidence was to the following effect [2016] FWC 1608
that:

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He commenced work with BMD in March 2015	.
b.	At the outset of his employment, BMD had scheduled a skills assessment task

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of the labour force at the Terrigal Drive site, which was yet to commence	.
c.	There were measures considered to determine which labourers were to remain

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and which were to be terminated pending the switch . Mr Lightfoot gave

consideration to the qualifications of each worker on the site before exercising

discretion in selecting which employees are to be terminated.

d. The differences in qualifications between employees where discussed in a

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meeting held on the 18 May 2015 between Mr Lightfoot and Mr Insell . Mr

Lightfoot gave examples in evidence as to why other employees where

favoured:

“Daniel Fleming is a labour-hire fellow also. Vacu-excavation is a huge part

of this job with the amount of services that are in the ground and rather than

employ a range of vac truck wet-hire type subbies, BMD have supplied us with

our own vac trucks from Queensland and we’ve positioned this guy on the

vacuum truck full-time, and that’s really his dedicated role is on the BMD vac

truck and that’s where he has been since joining the project. Luke - again,

Luke is a Workforce labourer who is associated with our bobcat subbie, a

fellow called Hunter Bobcats and really another key of his role is when Cory is

basically unavailable to operate the bobcat, Luke can jump on it. So the bobcat

operates the same was as a grader would on a normal road construction job.

The job is not big enough to have a grader, so we need the bobcats to build the

road”

It is for the Commission to determine whether, at the time of the dismissal the position

held by the applicant was no longer required by the respondent. Mr Lightfoot

proposed in his evidence two separate dates in which the switch was to commence

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being, late May or June 2015 and June-Mid June . Mr Brandy’s dismissal took

effect on the 25 May 2015, one week prior the intended date of the switch. Mr

Lightfoot concedes that the switch did not occur till approximately three weeks after

the dismissal of Mr Brandy. However the delay occurred arising to circumstances

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which were not within the knowledge of Mr Lightfoot at the time of the dismissal	.
Regardless, Mr Lightfoot stated that despite, the delay, the position of Mr Brandy was

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still not required during the period of delay .This, Mr Lightfoot asserted justified the

respondent’s decision to dismiss the applicant on 25 May 2015. The applicant

submitted that:

[2016] FWC 1608

“The switch did not occur until after Mr Brandy was dismissed. In the circumstances,

it is not the case that the Respondent no longer required Mr Brandy’s position to be

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performed by anyone as at the date of his dismissal.”

Having considered all that has been put in relation to the matter, the evidence and

submissions, the Commission, as presently constituted, is satisfied the respondent had

a sound, defensible and well founded reason for the dismissal of the applicant. I agree

with the respondents submission’s that:

“The Applicant’s submissions that the position could not be redundant due to the

delay to the switch because the position became redundant from the switch,

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fundamentally misunderstands the construction program.”

This matter tells against a conclusion that the dismissal was harsh, unjust or

unreasonable.

b) Consultation: Clause 5.7(b)(1) of the EA stipulates:

(b) In relation to terminations the Company must:

1. Provide the employees with the relevant information including the reasons for

terminations contemplated, the number and categories of workers likely to be

affected, the resultant impact of work allocation on remaining employees and

the period over which the terminations are intended to be carried out.

2. Give the employees, as early as possible, an opportunity for consultation to be

taken to avoid or minimize the terminations and measures to mitigate the

adverse effects of any terminations on the workers concerned, such as finding

alternative employment.

The employer concedes that it did not fully comply with the consultation requirements

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in the EA. The respondent makes reference to UES (Int’l) Pty Ltd v Harvey

providing:

‘A failure to consult does not necessarily mean a dismissal was harsh, unjust or

unreasonable’

The evidence established that there were weekly prestart meetings (toolbox meetings)

conducted within the last four weeks of the intended switch date, these prestart

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meetings were conducted at 6:45 am . During these meetings, Mr Insell, placed all

employees present on notice of the impending switch, and the likelihood of changes

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occurring at the work site. The applicant accepts this . A week before the dismissal of

the applicant, Mr Insell and Mr Lightfoot held a meeting to discuss which employees

were and were not likely to remain on site post the switch. Upon conclusion of the

meeting, Mr Lightfoot sent an email to Mr Paul Greenacre (BMD Construction

Manager NSW). Mr Lightfoot made a request in the email that Mr Brandy is
[2016] FWC 1608

“immediately available for transfer”, proposing that Mr Brandy be relocated to

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another project. Mr Greenacre replied all on-going projects are full	.
It is well established that:

a) the consultation should be meaningful and should be engaged in before an

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irreversible decision to terminate has been made; and

b) “Consultation is not perfunctory advice on what is about to happen ...

[c]onsultation is providing the individual, or other relevant persons, with a

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bona fide opportunity to influence the decision maker.”

However an exception may arise, where it can be found that having regard to all

circumstances, consultation would have been highly unlikely to negate the operational

reasons for the dismissal or lead to a substantive change. In those circumstances, the

Commission gives less weight to the lack of consultation of the employer, to a point it

may not be considered by the Commission in determining whether or not the dismissal

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was unfair.

Having regard to all the evidence before me I am not satisfied that, to the extent there

was a failure to fully meet the consultation obligation in the EA, it is significant in the

overall context in determining whether the dismissal was harsh, unjust or

unreasonable. The Commission, as presently constituted, finds there would have been

no alteration of the outcome had there been extensive consultation as per the EA. The

absence of consultation in accordance with the EA means the redundancy was not a

“genuine redundancy”, but it was not so serious a procedural deficiency to support a

conclusion that the dismissal was harsh, unjust or unreasonable.

c) The respondent submits there was limited opportunity of redeployment for the

applicant. It was put by Mr Lightfoot that an email was sent on the 18 May 2015 to

HR personal, namely Mr Greenacre informing that the applicant is available for

transfer. As previously mentioned, Mr Greenacre replied that no positions are

available. This was contested by Mr Lightfoot Curtain who provided that at the time

of the applicant’s dismissal, several sites where available to the respondent to consider

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in redeploying the applicant . These locations are all roughly 1 Hour 50 Minutes from

the area of Terrigal. The applicant gave evidence he would have been willing to travel

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that distance and time per way every day . His preparedness to undertake lengthy

travel time for work was uncontested and I accept the genuineness of his evidence in

this regard. Of course, by reason of the failure of the respondent to comply with its

obligations to consult, no conversation occurred with the applicant about what steps

might be put in place to mitigate the adverse consequences of the termination of his

employment. However, having regard to the evidence of Mr Lightfoot about the state

of the enterprise and utilisation rates of employees in May 2015, while I think that

discussion should have occurred, I am not satisfied that, had the discussion occurred,

[2016] FWC 1608

the respondent would have transferred the applicant to a distant location. This matter

tells against a conclusion that the dismissal was harsh, unjust or unreasonable

[34]      It is an unfortunate incidence of the construction industry that the workloads vary.

This means employers need to reduce and expand their workforce depending on the demands

placed on them at different stages of the project. In the present matter the applicant fell victim

to the ebb and flow of work. However, an employer exercising these grounds cannot always

be found liable of an unfair dismissal in instances where there is failure to adhere to

consultation, especially in cases such as the one before me, where more likely than not, the

consultation would not have resulted in a different outcome to the one originally reached on

25 May 2015.

[35]      The Commission, as presently constituted, is satisfied that the applicant was protected

from unfair dismissal but that the dismissal was not a case of genuine redundancy within the

meaning of s.389 of the FW Act because of the respondent’s failure to comply with its

consultation obligations.

[36]      However, having considered each of the matters specified in s.387, the Commission,

as presently constituted, is not satisfied that, overall, and having regard to the obligation to

afford a “fair go all round” the dismissal of the applicant was harsh, unjust or unreasonable. In

this case, deficiencies in the consultation about the redundancy would not have altered the

outcome arrived at by the respondent and provide little support for a finding that the

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termination was harsh, unjust or unreasonable. Accordingly, the Commission, as presently

constituted, finds the applicant’s dismissal was not unfair within the meaning of the FW Act.

The applicant’s application for an unfair dismissal remedy must, therefore, be dismissed.

[37]      An order will be issued with this decision.

COMMISSIONER

Appearances:

Mr P. Quinn, NSW Construction, Forestry, Mining and Energy Union

Mr G. Power, Drayton’s Workplace Consulting

Hearing details:

2015

Sydney

10 September

[2016] FWC 1608

Final written submissions:

Applicant, 11 November 2015

Respondent, 25 November 2015

Applicant’s Reply, 2 December 2015

Printed by authority of the Commonwealth Government Printer

<Price code C, PR577971>

1

[2015] FWC 6415

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[2015] FWCFB 7626

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Appeal Hearing with Commissioner Johns presiding - Transcript PN9

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Section 596(2)(a) of the FW Act

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Transcript PN612-614

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Exhibit B – Attachment A

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Sayer v Melsteel [2011] FWAFB 7498.

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UES (Int’l) Pty Ltd v Harvey (2012) 215 IR 263.

9

Transcript PN173

10

Transcript PN174

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Transcript PN178

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Transcript PN236

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Transcript PN371

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[2013] FWC 8902

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[2016] FWC 858 [39] – [40]

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Transcript PN38

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Transcript PN45

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Transcript PN45

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Transcript PN50-53

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Transcript PN205-206

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Transcript PN37

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Transcript PN87

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Transcript PN88

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Transcript PN93

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Applicants Final Submissions at Para 19

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Respondent’s Final Submissions at Para 11

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[2012] FWAFB 5241 [49]

28

Transcript PN57

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Transcript PN482

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Transcript PN368

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Construction, Forestry, Mining and Energy Union v Newcastle Wallsend Coal Company (1998) 88 IR 202, 218; cited in

Steele v Ennesty Energy Pty Ltd T/A Ennesty Energy [2012] FWA 4917 (unreported, Jones C, 21 June 2012) [20].

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Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

vVodafone Network Pty Ltd (unreported, AIRC, Smith C, 14 November 2001) PR911257 [25].

33

[2012] FWAFB 5241 [49]

34

Exhibit D at cl. 6 & Transcript PN558

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Transcript PN449-450

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Murrihy v R Mechanical Services Pty Ltd [2012] FWA 8416 [40]