Cooke & Dowsett Pty Ltd v Marios Andronicou
[2014] FWCFB 447
•16 JANUARY 2014
[2014] FWCFB 447 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Marios Andronicou
(C2013/6751)
VICE PRESIDENT CATANZARITI | SYDNEY, 16 JANUARY 2014 |
Appeal against decision [[2013] FWC 8097] and [PR543617] of Commissioner Bissett at Melbourne on 22 October 2013 in matter number U2013/9311.
[1] This is an appeal by Cooke & Dowsett Pty Ltd (Appellant) against an order 1 (Order) and a decision2 (Decision) of Commissioner Bissett in relation to an application made by Mr Marios Andronicou under s.394 of the Fair Work Act 2009 (the Act).
[2] Mr Andronicou commenced employment with the Appellant on 24 August 2011 and was employed there until his employment was terminated, on a redundancy basis, on 16 April 2013. He had been employed as a daily hire employee, classified as a plumber in accordance with the Cooke & Dowsett Pty Ltd and CEPU - Plumbing Division (Vic) Enterprise Agreement 2011-2015 (the Agreement).
[3] Although it was alleged that the employment came to an end due to a redundancy, Mr Andronicou filed an application for an unfair dismissal remedy with the Fair Work Commission (the Commission) alleging that he was he was unfairly dismissed by the Appellant.
[4] The Commissioner issued the Decision and the Order in which she found that the purported redundancy was not a “genuine redundancy” within the meaning of the Act and that Mr Andronicou had been unfairly dismissed.
[5] At the hearing of the appeal on 10 December 2013, Mr D’Abaco of Counsel sought permission to appear for the Appellant and Mr Andronicou sought permission to be represented by Mr Dircks of Just Relations. Given the complexity of the issues on appeal, and having regard to s.596 of the Act, permission was granted to both parties to be represented.
Background
[6] The relevant factual background to this matter was conveniently summarised by the Commissioner in the Decision as follows:
“[11] The Respondent [the Appellant on appeal] says that the Applicant [Mr Andronicou] was employed to work as a plumber on the Villa Maria project on 24 August 2011. In September 2012 he was relocated to the Swinburne project. Whilst at the Swinburne project on 21 September the Applicant injured his ankle. As a result of this injury the Applicant was unfit for work until 13 January 2013. At this time he returned to work on restricted duties at the Respondent’s warehouse. But for the injury the Respondent says the Applicant would have been returned from the Swinburne project to the Villa Maria project. That is, the Respondent says that the Applicant was employed to work on the Villa Maria project and that his move to the Swinburne project (which remains ongoing) was temporary.
[12] Work on the Villa Maria project concluded on 12 November 2012. The positions of the three employees on site at this time became redundant. The three employees were successfully redeployed to other work.
[13] The evidence of Mr Sullivan for the Respondent is that he was not responsible for determining where the Applicant worked. He says that his belief that the move of the Applicant to the Swinburne project was only temporary was based on the pay records. He also says that, after the Applicant was injured when working at the Swinburne project, the position he was filling there was filled by another employee.
[14] Further, the evidence of Mr Sullivan is that there has been a general downturn in the industry such that the number of plumbers needed by the Respondent has reduced. His written witness statement indicates that in April 2013 the Respondent experienced a workforce reduction of 43 employees and between November 2012 and July 2013 had experienced a reduction of 56 employees, of whom 50 were plumbers. His evidence is that reports of new projects gained by the Respondent which were outlined in the staff newsletters do not mean that plumbers are required immediately as it may be some time before a new project comes on line.
[15] In April 2013 the Applicant received a certificate of capacity indicating he could return to his pre-injury duties. Mr Sullivan says the Applicant’s position was at Villa Maria and because that project had finished it was necessary to attempt to redeploy the Applicant. Mr Sullivan says he sought, but could not find, any redeployment opportunities for the Applicant.
[16] The Applicant says that he was not assigned permanently to Villa Maria and he had been moved on an ongoing basis to Swinburne. If this is found to be the case, the Applicant submits that the most basic of requirements of a genuine redundancy has not been made out in that the job he was performing before his injury was still required to be done.
[17] The Applicant says he was told he would be working on the Swinburne project by both the foreman at Villa Maria and the foreman at Swinburne. In any case he also says he had at the time of his employment worked in Wantirna and did another project at Swinburne before going to Villa Maria and back to Swinburne. As such, he says he was not just employed to work on the Villa Maria project.”
(footnotes omitted)
[7] Section 389 of the Act states:
“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.”
[8] The Appellant relied on the evidence of Mr Sullivan, its National Construction Manager, to establish that there had been a downturn in the Appellant’s business at the time of Mr Andronicou’s termination. It is not necessary for that evidence to be repeated, although a summary is provided at [25]-[27] of the Decision below.
[9] The Commissioner noted that there were “major inconsistencies” in the evidence presented by the Appellant at first instance, and as those inconsistencies were not explained, doubt existed over any evidence with respect to employee numbers. The Commissioner concluded at [32] of the Decision that:
“On the basis of a lack of sound evidence to support its claims of staff reductions at the period of time relevant to this application I cannot find that the Respondent [the Appellant on appeal] no longer required the job done by the Applicant [Mr Andronicou] to be done by anyone due the operational needs of the business.”
[10] The Commissioner went on to conclude that reinstatement was not appropriate and given that the Appellant’s obligation to continue to provide employment to Mr Andronicou under the Accident Compensation Act 1985 (Vic) (AC Act) would not have expired until 2 October 2013, Mr Andronicou was entitled to 24 weeks’ compensation, less appropriate deductions for monies earned, contingencies and failure to mitigate loss.
Submissions
[11] The grounds of appeal, as outlined in the Notice of Appeal filed on 11 November 2013 are:
“1. The learned Commissioner was in error in rejecting the Respondent’s evidence as to reduction in staff numbers.
2. The learned Commissioner further erred in refusing to find that the Respondent no longer required the job done by the Applicant to be done by anyone due to the operational needs of the business.
3. The learned Commissioner was in error in finding that, despite the starting and ending of projects being part of the normal operations of the business and any business engaged in the building and construction industry, the end of a project constituted a major change in the organization of work of the Respondent.
4. The learned Commissioner was in error in finding that the day to day normal change in requirements of the industry, being the construction industry, did not release the Respondent from its obligations to consult in accordance with clause 10 of the Cooke & Dowsett Pty Ltd and CEPU - Plumbing Division (Vic) Enterprise Agreement 2011-2015.
5. The learned Commissioner was in error in finding that the requirement to consult under the Agreement was not met.
6. The learned Commissioner was in error in finding that the dismissal was not a genuine redundancy.
7. The learned Commissioner was in error in finding that the Respondent had an ongoing obligation pursuant to the Victorian Accident Compensation Act 1985 to employ the Applicant for a 52 week period from the date of the injury.
8. The learned Commissioner was in error in finding that the Respondent had an ongoing obligation pursuant to the Victorian Accident Compensation Act 1985 to continue to employ the Applicant even though the Applicant had a certificate of capacity returning him to his pre-injury duties.
9. Because of the errors referred to in paragraphs 6, 7 and 8 the learned Commissioner was in error in finding the Applicant would have remained in employment for 24 weeks beyond the date of dismissal.
10. Because of the errors referred to in paragraphs 6, 7, 8 and 9 the learned Commissioner was in error in the calculation of the amount of compensation to be paid to the Applicant.
11. Such further or other grounds as may be advanced by the Appellant at the hearing of the Appeal.”
[12] At the hearing of the appeal, the Appellant stated that it did not press the fifth ground of appeal. With respect to the other grounds, the Appellant submitted that the decision of the Commissioner is affected by significant error and raises general issues of principle such that permission to appeal ought to be granted.
[13] It was submitted that the Commissioner fell into error by rejecting the evidence of Mr Sullivan concerning the reduction in the number of employees employed by the Appellant from November 2012 to July 2013. The Appellant submitted that it is clear that since November 2012, the Appellant’s business has experienced a downturn and had reduced employee numbers considerably. In those circumstances, the only conclusion reasonably open to the Commissioner was that the Appellant no longer required the job done by Mr Andronicou to be done by anyone. As Mr Sullivan was not cross-examined about the alleged discrepancies in the evidence, it was submitted that the Commissioner’s conclusion is unsafe.
[14] It was also submitted that the Commissioner erred in rejecting the evidence and submissions of the Appellant as to the nature of the construction industry and what is in effect the ordinary ebb and flow of employment based on projects commencing and finishing. It was submitted that the end of projects, and the consequential termination of the employment of employees by reason of redundancy, is part and parcel of the construction industry in which the Appellant operates. Accordingly, the retrenchment of employees in such circumstances does not constitute “major change” and therefore does not trigger the consultation requirements of the relevant enterprise agreement. In finding to the contrary, it was submitted that the Commissioner erred. Even if such consultation requirements were triggered, and the Appellant failed to consult Mr Andronicou (which was accepted on appeal), it was submitted that consultation would not have changed the ultimate outcome and in those circumstances, notwithstanding the failure to consult, the dismissal was not unfair.
[15] Furthermore, it was submitted by the Appellant that the Commissioner erred in law with respect to the operation of s.194 of the AC Act, and the obligation imposed on employers by that provision. It was submitted that the Commissioner’s interpretation of that provision impacted her conclusion that Mr Andronicou was unfairly dismissed (i.e. the liability question) as well as the quantum of compensation payable to Mr Andronicou (i.e. the remedy question).
[16] In response, Mr Andronicou submitted that it was open to the Commissioner to form the view that Mr Sullivan was not a reliable witness as there were clear contradictions in Mr Sullivan’s evidence and the documents tendered to support the Appellant’s position that Mr Andronicou’s dismissal was due to a genuine redundancy. Furthermore, it was submitted that the finding that the Appellant no longer required Mr Andronicou’s job to be done by anyone due to the operational requirements of the business was not made out on the evidence before the Commission, and no error is revealed by the Commissioner’s findings.
[17] With respect to the Appellant’s submissions regarding the consultation requirements under the Agreement, Mr Andronicou submitted that the Agreement provisions appear not to differ from the usual award approach and the events which trigger the consultation requirement cannot be read down because of the industry in which they occur. Furthermore, as the Commissioner noted in the Decision, it is not necessary to consider if the Appellant met its consolation obligations, or if the obligations were triggered, as failure to consult was seen as a secondary or an additional basis upon which to conclude that the dismissal was not a case of genuine redundancy.
[18] In response to the Appellant’s submissions regarding the AC Act, Mr Andronicou submitted that the Commissioner was correct in her interpretation of s.194. If the construction pressed by the Appellant was adopted, it would appear to run contrary to the purpose of the return to work provisions of the AC Act.
[19] Mr Andronicou submitted that it has not been made out that the Commissioner acted upon a wrong principle, had been guided by irrelevant factors, had mistaken the facts, or failed to take some material consideration into account, and accordingly public interest does not arise which would warrant permission being granted to the Appellant to appeal the Decision and Order.
Consideration
[20] In order to grant the Appellant permission to appeal, the Full Bench must be satisfied that it is in the public interest to do so. 3 In GlaxoSmithKline Australia Pty Ltd v Colin Makin4 a Full Bench summarised the concept of public interest in the following terms:
“Although the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters...”
[21] We do not consider that the Appellant has in this instance demonstrated that it is in the public interest to grant it permission to appeal the Commissioner’s Decision.
[22] The Appellant has alleged that the Commissioner has made errors of fact and errors of law. If the error of the decision maker relied upon by the Appellant is an error of fact, then the Full Bench must be satisfied it is a significant error of fact. 5 It is not enough that the Full Bench would have arrived at a different conclusion to that of the original decision maker; the relevant question is whether the finding made by the decision maker was reasonably open to him or her.
[23] Although we accept that it is somewhat unusual for a member of the Commission to rely on Christmas newsletters in evaluating whether there was a downturn in a business, which goes to the question of whether the employee was dismissed as a result of a genuine redundancy, we note that it was the Appellant who had relied on the evidence at first instance. It was for the Commissioner to evaluate the evidence before her, including the credibility of the witnesses, and we are not satisfied that the Commissioner made a significant error of fact which resulted in a finding that was not reasonably open to her.
[24] Given our finding above that it was open to the Commissioner to find that the Appellant had not established that it did not require anyone to do the job that Mr Andronicou was performing, it is not necessary for us to consider whether the Commissioner’s findings with respect to the Appellant’s consultations obligations were reasonably open to her. As submitted by Mr Andronicou, these findings were secondary.
[25] With respect to the Commissioner’s findings as to the operation of the AC Act, we do not consider that the Appellant has established that the Commissioner had made an error of law in reaching her conclusions with respect to the liability question or the remedy question.
[26] The representatives appearing on behalf of the Appellant at the hearing of the appeal acknowledged that there are no authorities in this jurisdiction, or indeed in the Victorian jurisdiction, as to the interpretation of the relevant obligations as contained in s.194 of the AC Act. In light of this, and having considered the submissions made by both parties, we consider that the findings made by the Commissioner were open to her, and no error is revealed in her approach.
Conclusion
[27] We are not satisfied that it is in the public interest to grant the Appellant permission to appeal the Decision and Order of the Commissioner at first instance. The conclusions reached by the Commissioner were reasonably open to her, and accordingly, the Full Bench cannot interfere with that decision. 6 Permission to appeal is not granted. Accordingly, the stay of the Order, granted by Deputy President Gostencnik on 18 November 2013,7 is lifted.
VICE PRESIDENT
Appearances:
J D’Abaco of Counsel for Cooke & Dowsett Pty Ltd
G Dirks for Marios Andronicou.
Hearing details:
2013.
Melbourne:
December 10.
1 PR543617.
2 [2013] FWC 8097.
3 Fair Work Act 2009, s.400(1).
4 [2010] FWAFB 5343 at [27].
5 Fair Work Act 2009, s.400(2).
6 House v The King (1936) 55 CLR 499.
7 PR544670.
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