Brendan Charles McSherry v Veem Ltd T/A Veem Engineering Group Pty Ltd
[2022] FWC 1500
•15 JUNE 2022
| [2022] FWC 1500 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Brendan Charles McSherry
v
Veem Ltd T/A Veem Engineering Group Pty Ltd
(U2021/10748)
| COMMISSIONER WILLIAMS | PERTH, 15 JUNE 2022 |
Application for an unfair dismissal remedy
Mr Brendan McSherry (the Applicant) has made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009. The Respondent is Veem Ltd T/A Veem Engineering Group Pty Ltd (the Respondent).
The Respondent objects to the application on the ground that it submits the dismissal was a case of genuine redundancy and so, by virtue of s.385, the Applicant has not been unfairly dismissed.
The matter was listed for hearing and the notice of listing required both parties to file witness statements and submissions. Both parties have filed their materials accordingly.
The notice of listing included listing details which specified that the parties were required to attend the Commission in person at 10:30 am Wednesday, 8 June 2022.
At the notified time and day of hearing the Respondent’s Production Manager, Mr Angelo Chiappini, attended in person to represent the Respondent and to give his evidence as the Respondent’s sole witness.
The Applicant failed to attend the hearing.
Consequently, my associate rang the Applicant’s mobile phone twice but was unable to contact the Applicant and no facility was provided to leave a message.
The Applicant had not contacted the Commission prior to the hearing to indicate he was unable to attend.
In the circumstances, the Commission waited until 10:45 AM and then proceeded with the hearing in the absence of the Applicant. During the course of the hearing the applicant did not appear.
Having heard Mr Chiappini’s evidence and having also admitted into evidence the Applicant’s witness statement and his other written materials, I issued my decision.
Having considered all of the evidence my decision was read into transcript. The Commission has decided to uphold the Respondent’s jurisdictional objection. I am satisfied that the dismissal of the Applicant was a case of genuine redundancy and so by virtue of s. 385 was not an unfair dismissal.
What follows is the reasons for this decision.
Since the hearing the Applicant has not otherwise contacted Commission.
The evidence and factual findings
Mr Chiappini gave evidence for the Respondent and had filed two witness statements, dated respectively 15 March 2022 and 17 May 2022.[1] The second of these statements was responsive to the witness statement and materials filed by the Applicant on 25 April 2022.
At the hearing the Respondent was advised that, notwithstanding the Applicant did not attend, I would accept the Applicant witness statement, and the materials filed with it, as his evidence and submissions in this matter.[2]
The Applicant also filed a one-page letter from a Dr Joshua McCann, an ex-employee of the Respondent whom Mr Chiappini confirmed had resigned from his position with the Respondent in November 2021 after the Applicant’s employment had ended.
Dr McCann did not attend the hearing nor has the Commission been advised as to why he was not present to give his evidence in person. The Commission’s directions expressly stated that all witnesses must attend the hearing.
Consequently, the letter from Dr McCann has not been admitted into evidence and does not form part of the record in this matter.
Relevant facts are as follows.
Mr Chiappini commenced as the Respondent’s Production Manager in September 2021.
One of his tasks in the first eight weeks was to look at the organisation structure and, in particular, the workshop team and the fact that the business operated with two Production Controllers.
The Applicant was one of the Production Controllers and he had three electrical personnel reporting to him. The other Production Controller had six personnel reporting to him being five mechanical fitters and one trades assistant. These arrangements are reflected in the organisational charts provided by Mr Chiappini’s evidence.
Mr Chiappini’s conclusion was that an efficiency improvement could be achieved by removing one of the Production Controller’s roles and retaining a single Production Controller whom would be responsible for all of the nine direct reports.
For a number of reasons explained in his evidence, his conclusion was that the other Production Controller was the better fit to be retained to manage all of the workshop technicians and consequently the Applicant’s Productions Controller role would be made redundant.
Before then deciding that the Applicant’s employment would be ended Mr Chiappini explains he considered whether there were any engineering requirement for the Applicant’s skillset however, the response from engineering was that his qualifications did not match the research and design engineering work required for the future design projects/plans.
Consequently, it was decided that the Applicant would be dismissed because his role was no longer required.
Mr Chiappini met with the Applicant on 3 November 2021 to advise him of the fact that his position as Production Controller was redundant and consequently his employment with the company would end. He explained the background to this being the consolidation of the two Product Controller roles into a single role. He explained the terms of the redundancy payments and provided the Applicant with information about what his final pay would be.
The Applicant was paid four weeks in lieu of notice and paid a further four weeks redundancy payment.
The Applicant in his statement traversed the history of his employment with the Respondent.
He provided details about the duties he undertook. He had a series of complaints about his view of the management of the Respondent.
The Applicant’s evidence was that the many responsibilities that he had as one of the Production Controllers were still required by the Respondent to be done.
He says this is demonstrated by the Respondent distributing his responsibilities to other employees being the Production Controller, an Electronics Engineer and also an Electrical Engineer.
He also says this is demonstrated by the fact that 18 days after his employment ended the Respondent advertised for an Electronics Engineer, a role which he says he was capable of filling.
With respect to this advertised Electronics Engineer role that the Applicant refers to, Mr Chiappini in his evidence in reply explained that three weeks after the Applicant’s employment had ended Dr Joshua McCann who has a Bachelor of Electrical Engineering and a Doctor of Philosophy unexpectedly resigned. The advertised position was to fill this employee’s role.
Mr Chiappini’s evidence which I except is that at the time of deciding to make the Applicant’s role redundant there simply were no positions vacant for the Applicant to be redeployed to. At this time, he was not aware that Mr McCann would resign three weeks later as he did.
His evidence was that in any event, as the advertisement specifies, the Respondent required Applicants for this role to have a Bachelor Degree in Electronics Engineering or equivalent, which the Applicant does not have.
The legislation
Section 385 of the Act, which is set out below, prescribes that a person has been unfairly dismissed only if, amongst other things, the Commission is satisfied that the dismissal was not a case of genuine redundancy.
“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.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
Section 389 of the Act prescribes what is meant by genuine redundancy and is set out below.
“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.”
Consideration
The question for the Commission to determine when considering the Respondent’s jurisdictional objection is whether the Applicant’s dismissal was a case of genuine redundancy.
Considering s.389, this means:
· Did the Respondent no longer require the Applicant’s job to be performed by anyone because of changes in the operational requirements of the enterprise and,
· did the Respondent comply with any obligations in a modern award or enterprise agreement that applied to the Applicant’s employment to consult about redundancy; and
· would it have been reasonable in all of the circumstances for the Applicant to have been redeployed within the Respondent’s enterprise or that of an associated entity?
The Commission in previous cases, in particular Ulan Coal Mines Limited v Henry Jon Howarth and Ors [2010] FWAFB 3488, has considered the words in s.389 as follows:
[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.
[18] In Kekeris v A. Hartrodt Australia Pty Ltd[2010] FWA 674 Hamberger SDP considered whether a dismissal resulting from the restructure of a supervisory team was a case of genuine redundancy. As a result of the restructure, four supervisory team leader positions were replaced by three team leader positions. The Senior Deputy President said:
“When one looks at the specific duties performed by the Applicant prior to her termination they have much in common with those of two of the new positions in the new structure. The test is not however whether the duties survive. Paragraph 1548 of the explanatory memorandum makes clear that it can still be a ‘genuine redundancy’ where the duties of a previous job persist but are redistributed to other positions. The test is whether the job previously performed by the Applicant still exists.” (at par [27])
[19] In the present case, the Commissioner appears not to have drawn an appropriate distinction in his reasoning between the “jobs” of the mineworkers who were retrenched and the functions performed by those mineworkers or take proper account of the nature of the restructure at the mine which led to an overall reduction in the size of the non-trades mineworker workforce. The Company restructured its operations in various ways including by outsourcing certain specialised, ancillary and other work and increasing the proportion of trade-qualified mineworkers in underground development and outbye crews. As a result, it was identified that there were 14 non-trades mineworker positions which were surplus to the Company’s requirements. The mineworkers whose employment was to be terminated were determined according to the seniority principle as provided in the Agreement. This did not mean that the functions or duties previously performed by the retrenched mineworkers were no longer required to be performed. It also did not mean that the positions of some of these mineworkers (e.g. in underground crews) did not continue, although those positions might after the restructure be filled by more senior non-trades mineworkers transferred from other parts of the operations or by trade-qualified mineworkers. However fewer non-trades mineworker jobs were required overall at the mine as a result of the operational changes introduced and, for this reason, the jobs of the 14 mineworkers selected for retrenchment could be said to no longer exist.
[20] These circumstances readily fit within the ordinary meaning and customary usage of the expression in s.389(1)(a) of the Act where a job is no longer required to be performed by anyone because of changes in the operational requirements of the employer’s enterprise.
Relevantly for this case the Full Bench decision above makes it clear that an employee may still be genuinely made redundant when there are aspects of the employee’s duties still being performed by other employees.
The test is whether the previous job has survived the restructure rather than whether the duties have survived in some form.
It is the employee’s ‘job’ that is no longer required to be performed, rather than the employee’s ‘duties’.
In this case there is no dispute that the duties undertaken by the Applicant in his position of Production Controller were reassigned to be performed by other existing employees.
The Respondent however quite clearly, due to changes to its operational requirements, no longer required two Production Controller positions.
The Respondent believed it could operate with only one Production Controller position. That decision was entirely the Respondent’s to make.
Which of the two Production Controller’s would be retained and which would have their job made redundant was also the Respondent’s decision to make.
Unfortunately for the Applicant the Respondent’s decision was that his Production Controller job would be the one to be made redundant. Consequently, the Applicant was dismissed from his employment.
There is no evidence before the Commission that there was any obligation in a modern award or enterprise agreement that applied to the Applicant’s employment to consult about the redundancy.
The evidence is that at the time the Applicant’s employment ended there was no position to which the Applicant could be redeployed.
Consequently, considering the meaning of genuine redundancy prescribed in 389 and all of the facts of this case I am satisfied that the Applicant’s dismissal was a case of genuine redundancy.
I uphold the Respondent’s jurisdictional objection.
In the circumstances of this case by virtue of s.385 the Applicant has not been unfairly dismissed.
Consequently, this application will be dismissed and an order to that effect will be issued in conjunction with this decision.
[1] Exhibit R1 and Exhibit R2.
[2] Exhibit A1.
Printed by authority of the Commonwealth Government Printer
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