Cyril Doolah v Jassar & Manesh Pty Ltd

[2020] FWC 5942

[2020] FWC 5942

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Cyril Doolah
v
Jassar & Manesh Pty Ltd
(U2020/5032)

DEPUTY PRESIDENT LAKE BRISBANE, 5 NOVEMBER 2020

Application for an unfair dismissal remedy – dismissal is a case of genuine redundancy – application dismissed.

Background

[1] This decision concerns an unfair dismissal application made by Cyril Doolah (the Applicant) made under s 394 of the Fair Work Act 2009 (the Act). Mr Doolah was employed as a driver for Jassar & Manesh Pty Ltd trading as RockTrans (the Respondent). He was employed on 25 March 2019 until his position was made redundant and his employment ended on 15April 2020. Mr Doolah contends that his dismissal was unfair and seeks compensation.

[2] The Respondent objected to the application on the basis that his dismissal was a genuine redundancy for the purposes of s 389 of the Act. They further contend that the Applicant’s dismissal was not unfair.

[3] The matter was listed for hearing before me on 18 August 2020 where I heard the jurisdictional objection and the substantive claim. Mr Doolah was unrepresented and Mr Neil Rockley, the General Manager for the Respondent appeared on their behalf.

[4] The jurisdictional question of whether the Applicant’s dismissal was a case of genuine redundancy must first be determined before considering the merits of an unfair dismissal application. I note that the Applicant did make his application within the 21 day period required by s 394(2) of the Act, that he was a person protected from unfair dismissal earning less than the high-income threshold, and that he had undertaken the minimum period of employment (s 382).

[5] Having considered the parties’ submissions, and the evidence provided prior to and during the hearing, I have determined that the Applicant’s dismissal was a case of genuine redundancy. Thus, the Commission is without the power to hear or determine the Applicant’s claim for unfair dismissal. My reasons follow.

Genuine redundancy

[6] The Respondent contends that Applicant’s dismissal was a case of genuine redundancy and that the Commission has no jurisdiction to hear the merits of the application. Under s 385 of the Act, a dismissal cannot be unfair if it was a case of ‘genuine redundancy’, which is defined as follows by the Act at s 389:

(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.

Factual Matrix

[7] The Respondent operates a trucking company that hauls goods on behalf of their clients. They have approximately 65 workers and operate depots in Cairns and Atherton in Far North Queensland. The clients generally have national contracts and it is common for the business to lose a contract for a particular client and gain work through negotiations.

[8] The Applicant drove heavy rigid vehicles, which in Queensland are classified as vehicles that have more than 2 axles and over a gross mass of more than 8,000kg. He principally delivered products for Schweppes but he also did other driving duties when this contract did not provide sufficient work.

[9] In or around February, the Respondent was informed that the Schweppes contract had been lost and they were no longer required to deliver for the client. As is the fickle nature of the transport industry, the Respondents fortuitously picked up work with Linfox around the same time.

[10] In order for the Applicant to drive for Linfox, it was a requirement that he submit documentation through the Linfox portal in order to become a driver approved for driving on behalf of Linfox. The Applicant submitted the requisite documentation including a federal police check and his driver history. The Respondent was informed that the Applicant was unsuccessful in becoming an approved driver for Linfox. This process is not one influenced or controlled by the Respondent.

[11] The Respondent now faced a dilemma: the Schweppes contract the Applicant had been performing was no longer in existence and the new work through Linfox could not be performed by the Applicant, owing to his failure to be a Linfox approved driver – a decision entirely outside the powers of the Respondent.

[12] The Respondent identified work that was being performed through its sister business and duly offered this work to the Applicant, who for a variety of reasons elected not to take up the offer. Following this, the Respondent then made the decision to make the Applicant redundant and payed him 4 weeks’ pay, as was his entitlement.

Consideration

[13] I consider that the Respondent no longer required the Applicant due to the loss of the only substantial work that the Applicant could perform. The work that was available was for a Linfox qualified driver. The Applicant did not fit this criteria and so the Respondent as per the legislation identified an alternative role to redeploy the Applicant into.

[14] The Respondent gave evidence that the Applicant was consulted during the process about the loss of the contract and the impact on his role and the requirement to submit documentation to become qualified. I accept the evidence of Rockley that the business experienced a loss of contract and did work to identify alternative opportunities for Mr Doolah.

[15] On the evidence before me it seems evident that the decision to make this position redundant occurred because the Respondent needed to reduce employment costs in the face of the downturn after having lost a significant contract which formed the majority of the Applicant’s duties.

[16] In substance, almost the entirety of the Applicant’s job itself was the provision of services with respect to the Schweppes contract. Once that contract was lost, the Applicant’s job was no longer required to be performed by anyone. This loss clearly constitutes a change in operational requirements, given how fundamental its impact was upon the Respondent’s business.

[17] Alternatively, the Applicant’s “job” could be constructed more broadly to be a driver capable of doing any work within the Respondent. Section 389(a) of the Act indicates that the work must not be required to be performed by “anyone”. Clearly with the acquisition of the new Linfox contract, there was work that was capable of being performed. Under this formulation, the Respondent still required someone to do the job and therefore there is an argument to be made that this could not be considered a genuine redundancy.

[18] Ultimately, I prefer the narrower construction which takes a more specific and evidentiary analysis of what constitutes the “job” of the Applicant. In this case, the job the Applicant performed was no longer required to be performed by anyone, due to the loss of the Schweppes contract, which was, in substance, almost the entirety of his work. A broader interpretation has the potential to render the scope of s 389 too narrow to perform its practical effect.

[19] I now turn to the matter of whether the company complied with any modern award or agreement obligation to consult about the Applicant’s redundancy under s 389(1)(b) of the Act.

[20] The company acknowledged that the Applicant’s employment was covered by the Rocktrans Employees Enterprise Agreement 2010, the relevant clauses being 2.9 and 2.10.

[21] The company, as soon as it could, consulted with the Applicant about the loss of the Schweppes contract and also the acquisition of the new contract with Linfox. They sought to deploy him in the first instance to the Linfox work which required heavy rigid licensed drivers.

[22] Linfox required certain information to qualify as a sub-contractor driver and for an undisclosed reason the Applicant was not accepted by the Linfox process. The company then sought to deploy him into a role with a sister company for which he was suitable and had the relevant skills. He rejected this offer and was made redundant. I find that Rocktrans did follow the appropriate consultation process and endeavoured to redeploy Mr Doolah.

[23] The Applicant did not take up the redeployment opportunity. I find the Respondent complied with its obligation under s 389(2) of the Act.

[24] I conclude that the dismissal of Mr Doolah was a case of ‘genuine redundancy’.

[25] The application is dismissed. I Order accordingly.

DEPUTY PRESIDENT

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