Dale Carnes v Wagners Industrial Services Pty Ltd

[2015] FWC 3254

[2015] FWC 3254

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dale Carnes
v
Wagners Industrial Services Pty Ltd
(U2014/16048)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 15 MAY 2015

Unfair dismissal application - jurisdictional objection - s.389 - objection dismissed - hearing of substantive application - s.394 application dismissed

[1] This decision concerns an application by Mr Dale Carnes under s.394 of the Fair Work Act 2009 (“the Act”). Mr Carnes is seeking an unfair dismissal remedy arising from the cessation of his employment with Wagners Industrial Services Pty Ltd (“the employer”), which employed Mr Carnes as a Concrete Tester on the Ichthys LNG processing plant construction project in Darwin (“the project”).

[2] The employer, however, contends that the application is jurisdictionally incompetent in so far as the cessation of work was a “genuine redundancy” for the purposes of s.389 of the Act. It is to that preliminary matter that I must turn at first instance.

[3] Section 389 of the Act provides as follows:

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.

[4] The onus to make out the grounds under section 389 of the act falls upon the employer.

[5] The Explanatory Memorandum to the Fair Work Bill 2008 provides some insight into the scope of meaning of a redundancy as contemplated under the Act:

Clause 389 – Meaning of genuine redundancy

1546. This clause sets out what will and will not constitute a genuine redundancy. If a dismissal is a genuine redundancy it will not be an unfair dismissal.

1547. Paragraph 389(1)(a) provides that a person’s dismissal will be a case of genuine redundancy if his or her job was no longer required to be performed by anyone because of changes in the operational requirements of the employer’s enterprise. Enterprise is defined in clause 12 to mean a business, activity, project or undertaking.

1548. The following are possible examples of a change in the operational requirements of an enterprise:

• a machine is now available to do the job performed by the employee;



• the employer’s business is experiencing a downturn and therefore the employer only needs three people to do a particular task or duty instead of five; or



• the employer is restructuring their business to improve efficiency and the tasks done by a particular employee are distributed between several other employees and therefore the person’s job no longer exists.

1549. It is intended that a dismissal will be a case of genuine redundancy even if the changes in the employer’s operational requirements relate only to a part of the employer’s enterprise, as this will still constitute a change to the employer’s enterprise.

1550. Paragraph 389(1)(b) provides that it will not be a case of genuine redundancy if an employer does not comply with any relevant obligation in a modern award or enterprise agreement to consult about the redundancy. This does not impose an absolute obligation on an employer to consult about the redundancy but requires the employer to fulfil obligations under an award or agreement if the dismissal is to be considered a genuine redundancy.

1551. Subclause 389(2) provides that a dismissal is not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise, or within the enterprise of an associated entity of the employer (as defined in clause 12).

1552. There may be many reasons why it would not be reasonable for a person to be redeployed. For instance, the employer could be a small business employer where there is no opportunity for redeployment or there may be no positions available for which the employee has suitable qualifications or experience.

1553. Whether a dismissal is a genuine redundancy does not go to the process for selecting individual employees for redundancy. However, if the reason a person is selected for redundancy is one of the prohibited reasons covered by the general protections in Part 3-1 then the person will be able to bring an action under that Part in relation to the dismissal. [...] [My emphasis]

[6] The Project Manager, Mr Matthew Grulke, claimed that the employer contends that because of a wind down in the construction project it no longer required the same number of concrete testers to be employed. Whereas it had previously employed ten concrete testers, it determined that it only required nine concrete testers at this particular point in the phase down period. Mr Carnes’ employment came to an end, therefore, for reason that the operational requirements of the employer’s enterprise no longer required his position to be performed by anyone.

[7] Upon reaching this decision, Mr Grulke claims that he set about complying with the consultation obligations under the Wagners Industrial Services Pty Ltd Ichthys Onshore Construction Greenfield Agreement (“the agreement”).

[8] The agreement provides at clause 24, under the heading, “Consultation”, as follows:

“(a) the Employer shall advise, as soon as practicable after making the decision, the employees’ Delegate(s) [...] and/or the relevant Union and the employees of:

(1) any major change to the scheduled work; or

(2) any action it intends to take likely to have a significant effect on employees.

(b) In discussing any significant change with its employees, the Employer will:

(1) explain the nature of the change and the reason(s) for it;

(2) discuss any impact this is likely to have on the employees;

(3) explain the steps it will take to minimise the impact of the decision on the employees;

(4) consider any issues/matters raised by the employees affected; and

(5) consider whether any issues/matters raised by the employees affects either its decision or the steps it will take to minimise the impact of the decision on the employees.”

[9] Mr Grulke contends that he addressed a pre-start meeting on 7 November 2014 and issued employees (including Mr Carnes) with the memo explaining that the project was winding down and that there would now be consequential redundancies across the project. Mr Grulke also claims that he posted a copy of the same memo on the noticeboard.

[10] In essence, the memo explained that with the project having reached its peak the construction effort was ramping down and redundancies would result. The memo set out that the employer would attempt to identify suitable roles on another of its projects for an affected employee.

[11] In this respect, the memo stated:

“When you are no longer required to work on the project, Wagners will assess their other projects and whether there are any vacant positions which will be suitable to you. To help Wagners look for suitable roles elsewhere in the business, please complete the attached form and return to Rebecca Davis. If there are jobs that match your skills you will be consulted on the opportunities available. If they are not suitable to you, you will be made redundant.”

[12] Demobilsation by redundancy and redeployment is a common feature of the construction industry upon completion of contracted services during the projects’ construction phase, or upon the high point of the construction phase being passed, Mr Grulke so observed.

[13] The attachment to the memo was a demobilisation employee questionnaire. The questionnaire requested a variety of information concerning the skills profile of the relevant employee, employees’ qualifications and licences, the willingness to work away from home and to relocate, and their interest in specific positions. The questionnaire also inquired as to whether the affected employee would be willing to accept a rate of pay at a different rate than the rate of pay they are currently being paid.

[14] Mr Grulke contends that he discussed with the employees at the meeting of 7 November 2014 the prospect of imminent redundancies, provided all employees with opportunities to comment or ask questions at that pre-start meeting or any subsequent pre-start meeting about the redundancies, explained the process to potentially minimise the impact of redundancies by inviting employees to fill out the questionnaire referred to above and to indicate their interest in employment in other areas of Wagner’s business.

[15] Along with the questionnaire, a list of then current vacancies in the business was also attached.

[16] Mr Grulke contends that he checked regularly with the Human Resources Department and the Site Administrator (Ms Rebecca Davis) as to the responses by the questionnaires. Mr Carnes did not, in Mr Grulke’s view, submit a response in respect of the questionnaire and nor did he express any interest to Mr Grulke (or to any other person within Mr Grulke’s knowledge) in respect of redeployment. Ms Davis contended that she did not receive any form, application, expression of interest, or any other document from Mr Carnes in relation to his redeployment.

[17] At a meeting convened on 9 December 2014, Mr Carnes was notified that position was to be made redundant, with effect on 10 December 2014 (albeit on two week’s notice from 10 December 2014). Mr Grulke claimed that a merit-based matrix was used to determine which of the concrete testers would be made redundant.

[18] Mr Grulke was informed by the HR Manager, Ms Rachel Allan, that there were no other vacant concrete tester or related positions within the business into which Mr Carnes could have been redeployed.

[19] Mr Grulke stated that at no time during the meeting of 9 December 2014 did Mr Carnes raise any issue about redeployment opportunities or mention any forms that he had handed in following the pre-start meeting of 7 November 2014. Ms Allan herself gave evidence in support of Mr Grulke’s claims and contended that she did not receive any form or application or expression of interest in redeployment from Mr Carnes.

[20] Ms Allan did note that there was a casual laboratory assistant role in Brisbane which was a job share position advertised by the employer on 11 December 2014. The position was only advertised for the purposes of “an expression of interest” as approval for the creation of the position had not been formally provided at the time. The casual job share position was for approximately 2 days per week at an hourly rate that was half Mr Carnes’ current rate and a junior position. Mr Carnes did not lodge an expression of interest in relation to this position at the time.

[21] Mr Grulke also gave evidence to the effect that a number of other positions in other trades were made redundant on or about the same time, again owing to the ramping down of the project.

[22] Mr Carnes held the view that the pre-start meeting of 7 November did not involve any discussion of redundancies and that there had been a brief mention of redundancies only. Mr Carnes agreed that he received the relevant documents as set out above from Mr Grulke, however.

[23] Mr Carnes claims that he filled out the relevant documents and returned them to Ms Rebecca Davis. Mr Carnes claims he only filled out the forms as a precaution because he did not believe his position would be made redundant as the concrete testers had been very busy. Mr Carnes claims that he had been interested in interstate vacancies with the employer, and his completed questionnaire had so indicated.

[24] On 9 December 2014 Mr Carnes claims that he met with his employer (including Mr Grulke) and was informed his position had been terminated for reasons of redundancy. He claims not to have been offered any role within the enterprise and nor was it discussed whether he would be willing to consider any roles outside the construction project.

[25] Mr Carnes complained that he inquired as to why he had been selected for redundancy and not another concrete tester (particularly as two new testers had been employed in recent times). It was explained that he was selected for redundancy on the basis of comparative performance. Mr Carnes claims that he had never had any performance issue raised with him in the past.

[26] Mr Carnes also became aware of the laboratory assistant role in Brisbane (as referred to above) on 11 December 2014. He complained that he was not given an opportunity to consider applying for this role or to be considered for the role before such time as he was dismissed by his employer.

Consideration

Section 389(1)(i) of the Act

[27] The evidence of Mr Grulke supports the conclusion that Mr Carnes’ job was no longer required to be performed by anyone because of the changes in the operational requirements of the employer’s enterprise brought about by the ramping down of the construction phase of the project, and the forecast decline in demand for concrete testers (in line with the decline in the volumes of structural concrete to be poured). Other positions in other trades (truck drivers and batchers) were made redundant at the same time for the same reason.

[28] It may be argued that if the Company had employed two new concrete testers (as Mr Carnes’ said the Company had) immediately prior to his dismissal the genuineness of Mr Carnes’ redundancy might come under close questioning. But this claim must be read subject to Mr Grulke’s uncontested evidence that the two testers to whom Mr Carnes had referred had been employed (not around the same time as Mr Carnes had been made redundant but) in July 2014, at a time when there was an anticipated increase in demand for testing services. That is, the Company had employed the testers some 4 months before Mr Carnes’ “redundancy” when the Company was in a different market position.

Section 389(1)(ii) of the Act

[29] At the pre-start meeting on 7 November 2014, Mr Grulke took steps to discharge the obligations under the agreement to consult about the major change in the operations of the enterprise owing to the ramping down of the project. The evidence I have heard is sufficient to demonstrate that Mr Grulke explained the cause of the significant change and discussed the ways in which the Company would seek to mitigate the effects of that change on employees. He was provided with an information package and questionnaire which was distributed to each employee to effect that end. Thus, the employer claims it took the steps necessary under the agreement consultation clause to discharge its particular obligations in respect of:

● explaining the steps it will take to minimise the impact of the decision on the employees;
● considering any issues/matters raised by the employees affected; and
● considering whether any issues/matters raised by the employees affects either its decision or the steps it will take to minimise the impact of the decision on the employees.

[30] Mr Grulke gave evidence that he invited the employees to ask questions or raise issues at the particular pre-start meeting on 7 November 2014 or at any pre-start meeting subsequently.

At that time all the employees were aware that all trades across the project were exposed to the prospect of redundancy arising from the project having passed its peak point of demand for the Company’s services.

[31] While the state of the evidence is not entirely clear, it seems to me when he was advised on 9 December 2014 that his position was no longer required and his employment was terminated - and he demonstrably was an employee to be affected by the significant change - Mr Carnes was not asked as to whether he had any issues or matters to raise. That is, the Company terminated Mr Carnes’ employment without discrete inquiry into whether or not he had any issues or matters that he wished to raise that might have affected its decision making. In essence, the meeting of 9 December 2014 was for the exclusive purpose of terminating Mr Carnes’ employment, and served no ancillary purpose of discharging the wider requirements of the consultation provisions of the agreement.

[32] I don’t think that Mr Carnes’ non-response to the re-deployment questionnaire could discharge the obligation of the Company to give consideration as to whether any issues/matters raised by Mr Carnes affected its decision or the steps it will take to minimise the impact of the decision on the employees. Such an obligation under the Agreement reasonably implies an express opportunity for the affected employee to raise any “matters” or “issues” so that the employer can give consideration to them.

Section 389(2) of the Act

[33] There is a matter to which I need to turn initially and that concerns claims by Mr Carnes that he completed and submitted the forms distributed by Mr Grulke to the Company’s HR Department. The HR Department had no record of receiving Mr Carnes’ completed forms, which purportedly set out his preferences in relation to redeployment.

[34] Mr Carnes claimed that he scanned the documents on the evening of 7 November 2014 and emailed them to the Company. The evidence by the Company - through Ms Allan - was to the effect that the relevant mail boxes had all been searched and no such email was in evidence. The evidence went further: Ms Allan claimed she did not delete items from her deleted mail box either.

[35] Mr Carnes was unable to produce his email as sent to Ms Allan. He had no explanation as to why he was not in a position to do this. Mr Carnes gave no information as to what investigation he had carried out into the whereabouts of the sent email (other than that he may have deleted it or moved it to another folder).

[36] Mr Carnes made no claim that he had any difficulties with his internet connection or email account at any other time.

[37] When Mr Carnes met with his employer on 9 December 2014 he made no mention of his completed forms or preferences for redeployment.

[38] Mr Carnes had also claimed that he did not think his position was going to be affected by the redundancies (despite what Mr Grulke had said to the workforce).

[39] Having heard the evidence, I find that Mr Carnes’ claims that he had completed the relevant forms and e-mailed them to his employer to be lacking credibility. At the time the Company turned to consider redeployment of Mr Carnes it had in its possession no response by Mr Carnes to the questionnaire it had submitted as to his preferences in respect of redeployment or transfer. I will return to these matters further below.

[40] Notwithstanding the above findings is also necessary to determine the purposes of section 389(2) of the Act whether or not it would have been reasonable in all the circumstances for Mr Carnes to have been redeployed within the employer’s enterprise. It is, after all, not incumbent upon the affected employee - in this case Mr Carnes - to demonstrate his disposition in respect of redeployment. Rather, the onus falls upon the employer to demonstrate whether it was reasonable in the circumstances to redeploy Mr Carnes.

[41] The critical evidence for this purpose was that the Company took no steps to enquire into the availability of alternative positions for Mr Carnes because Mr Carnes had not returned the forms referred to above.

[42] This is not evidence of the reasonableness or otherwise of redeployment.

[43] The Company’s view was that the reason or otherwise for redeployment arose on the basis that irrespective of its failure to investigate such opportunities, the reality was that such opportunities did not exist in any event at the time of Mr Carnes’ dismissal.

[44] The evidence before me is that there were no other concrete tester positions available in the business, nor any related positions.

[45] Other than this, there were a number of internal vacancies but the Company did not enquire into Mr Carnes’ disposition in respect of these positions, and it was ultimately unclear as to whether Mr Carnes was expected to apply to these positions in competition with any other internal or external applicants. But none of these were positions in which Mr Carnes had any demonstrated experience (noting his curriculum vitae as presented to the Company).

[46] Mr Carnes did raise the circumstances of the availability of a laboratory assistant position in Brisbane on which an expression of interest was advertised on 11 December 2014. The circumstances of this position are set out above. It was reasonable in the circumstances for the employer not to consider Mr Carnes as being suitable for redeployment to a junior position which had not been formally approved, which was prospectively a two day per week job share position, and which attracted a rate of pay at a third of his hourly rate on the construction project in Darwin.

[47] Indeed, Mr Carnes himself, for no reason of substance, never applied for the same position when he discovered it on SEEK the day following his dismissal (and despite the Company having undertaken to assist him as it could in obtaining further employment).

[48] The Full Bench in Technical and Further Education Commission T/A TAFE NSW v L. Pykett[2014] FWCFB 714 (“Re: Pykett”) considered the basis on which the Commission can reach a finding in relation to s.392 of the Act. In so doing the Full Bench (which I take to having been referring to s.389(2) of the Act rather than s.389(2)(a) of the Act) found as follows:

[35] As we have mentioned, the use of the past tense in the expression ‘would have been reasonable in all the circumstances for the person to be redeployed ...’ in section 389 (2)(a) directs attention to the circumstances which pertained when the person was dismissed. As noted in Honeysett, [T]’he exclusion poses a hypothetical question which must be answered by reference to all of the relevant circumstances’.  The question is whether redeployment within the employer’s enterprise or an associated entity would have been reasonable at the time of dismissal.

[49] It must be established on the facts as they were at the time of the dismissal whether redeployment within the employer’s enterprise or an associated entity would have been reasonable. This does not require those facts to have been demonstrated at the time of the dismissal; they may be made apparent at a later time.

[50] Here, there is no indication that there was a position in existence to which Mr Carnes could have been reasonably redeployed, given the narrow focus of his employment history (which was singularly indicated through his curriculum vitae that he had been employed at all times as a laboratory technician/concrete tester). There are some other relevant considerations in respect of the employer’s obligations in relation to redeployment, and I will return to these further below.

[51] Mr Carnes did raise the issue of the merit-based selection process. But as I have highlighted above in the extract from the Explanatory Memorandum, the Commission is directed not to consider the process by which an employee is selected for redundancy in respect of the general determination under section 389 of the Act.

[52] Generally, the factual matrix revealed by the evidence demonstrates that the Company discharged its obligation to give consideration at the time of the dismissal to whether or not it was reasonable in the circumstances to redeploy Mr Carnes.

Conclusion

[53] It was argued on Mr Carnes’ behalf that the Company had not complied with its obligations under the consultation clause as set out above. I agree, but for different reasons than those pressed upon me. Mr Grulke’s conduct in explaining why redundancies were warranted in the context of the ramping down of the project, providing employees with information about how the Company goes about minimising the impacts upon employees, giving employees an opportunity to comment or ask questions, and discussing the redundancy with Mr Carnes went some considerable way to discharge the agreement consultation obligations. Mr Grulke also invited employees to ask questions at subsequent daily pre-start meetings. Whether Mr Grulke had provided this information, and extended these opportunities for discussion in a large group meeting or at a smaller group meeting does not appear to be relevant. The consultation clause does not agitate this level of prescription.

[54] But despite those earnest efforts, Mr Carnes - at least on the state of the evidence as it was about the exchanges in the meeting of 9 December 2014 - was not provided as an “affected employee” an opportunity expressly to articulate any “issues” or “matters” about which the Company was obligated to give consideration before taking the steps effect the significant change. The Company must make out clearly the steps by which it discharged its procedural obligation in order to attract the defence under s.389 of the Act, but in this particular respect, the procedural opportunity to have the affected employee’s “issues” and “matters” considered was not readily in evidence.

[55] I have not had regard to the process by which Mr Carnes was selected for dismissal. The Explanatory Memorandum (as highlighted above) makes it sufficiently clear that such a matter is not relevant to the determination of the jurisdictional question under s.389 of the Act. The Company, for its part, contends regardless that Mr Carnes had been given a written warning about his performance in May 2013 as part of his performance review. Mr Carnes was the weakest performer amongst the performance testing crew, according to Mr Grulke, and that is why he was selected for redundancy ahead of others.

[56] However, for the reasons given above, I do not think the Company took sufficient steps to discharge its obligation under s.387 of the Act.

[57] On the basis of the material and evidence before me, I find that the requirements of section 389 of the Act are not made out and that the cessation of Mr Carnes’ employment was not because of a “genuine redundancy”. The Company does not have access to the defence against the claim under s.394 of the Act available under s.389 of the Act because of this finding.

[58] Because of this, I now turn to consider the substantive application.

Legislative context

[59] Section 387 of the Act sets out the criteria for considering whether a dismissal was harsh, unjust or unreasonable. Section 387 is as follows:

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; 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.”

Consideration

(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)

[60] The Full Bench in UES (Intl) Pty LtdvLeevan Harvey[2012] FWAFB 5241 (Re: Harvey) indicated that a dismissal for operational reasons was not a dismissal related to an employee’s capacity or conduct.

[61] I found above that the decision to bring about the dismissal of Mr Carnes was because of an operational reason. This is not a matter relevant to s.387 of the Act. As a consequence, the circumstances bear in neutral terms upon the ultimate finding as to whether or not Mr Carnes was dismissed harshly, unjustly or unreasonably.

(b) whether the person was notified of that reason

[62] Given the circumstances referred to immediately above, Mr Carnes cannot be said to have been notified of the reason in respect of his capacity or conduct. Again, because Mr Carnes was dismissed because of an operational reason the absence of notification in the terms of s.387(b) of the Act is a neutral consideration for purposes of my ultimate finding.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[63] Once more, for the reasons referred to immediately above, the failure to be notified of the “reason” for the dismissal (which is a reason for the purposes of s.387(a) of the Act) is a neutral consideration as to whether or not the dismissal was harsh, unjust or unreasonable. This is because there is no valid reason for the dismissal as the dismissal was for reasons unrelated to Mr Carnes’ capacity or conduct.

(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

[64] The Company did not unreasonably refuse to allow Mr Carnes to have a support person present to assist in any discussions relating to dismissal. This is a neutral matter in respect of whether or not the dismissal was harsh, unjust or unreasonable.

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[65] This is a neutral matter in respect of whether or not the dismissal was harsh, unjust or unreasonable, given the circumstances referred to above.

(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

[66] Neither the size of the Company’s enterprise or the absence of dedicated human resource expertise were relevant considerations in respect of the procedures effecting the dismissal. I regard these matters to be neutral in respect of the ultimate consideration as to whether or not the dismissal was harsh, unjust or unreasonable.

(h) any other matters that the FWC considers relevant

[67] I have found earlier that I consider the reason for Mr Carnes’ dismissal to have been because of an operational reason - the project had passed its critical phase and the Company as a service provider to the client was in the ordinary process of demobilisation.

[68] Because of this, the Company’s reasons for the dismissal of Mr Carnes were sound, defensible and well founded.

[69] Mr Carnes was provided with a reasonable process of consultation in that his views were sought out as to his preferences of future employment should such opportunities be available to him.

[70] Mr Carnes did not respond to the information questionnaire as presented to him. I have discussed this matter above. The Company therefore proceeded on the basis that he had no preferences (and for all it knew Mr Carnes was not seeking to work following his demobilisation or had accepted or was anticipating accepting work in a different location (possibly) and/or with another employer).

[71] Mr Carnes did not make any comment at the meeting of 9 December 2014 as to what his preferences may have been and did not take steps on 10 December 2014 to make an application for a position which he claimed may have been of interest to him.

[72] In any event, there were no other vacant tester or related positions in the Company into which the Applicant could have been redeployed - Mr Carnes’ CV sets out that his employment history had been as a concrete tester – laboratory technician and that he had no immediate, demonstrable experience in any other positions.

[73] Notwithstanding this, issues around redeployment are not determinative as to whether a dismissal was harsh unjust or unreasonable.

[74] Mr Carnes, I add, complained that he was selected for redundancy on an unfair basis. However the evidence for the Company was that he was selected on the basis of his performance as a concrete tester. The process of selection for redundancy, in any event, is not a matter that is a salient consideration for purposes of determining whether a dismissal was harsh, unjust or unreasonable. This was a finding as set out in the Full Bench in Re: Harvey (see PN 28) as cited above.

[75] Mr Carnes’ submissions as lodged by his representative refers to the economic impact and otherwise of the dismissal upon his personal circumstances. Mr Carnes’ own written statement makes no such references, though it would be reasonably inferred that the loss of employment would hardly be economically advantageous.

Conclusion

[76] Mr Carnes was dismissed for operational reasons and these reasons were sound, defensible and well founded. There are no other matters to which any weight of any significance should be placed that would disturb a finding other than that Mr Carnes was not dismissed for reasons that were harsh, unjust or unreasonable. Even if the dismissal did affect Mr Carnes negatively in an economic context, that fact alone would not have given me cause to find otherwise. Redundancy and demobilisation, after all, is a common feature of construction-related project work, and that is an experience with which Mr Carnes’ curriculum vitae shows he is very familiar.

[77] In light of these findings, Mr Carnes’ application under s. 394 of the Act is therefore dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

Ms R Huskie of the CFMEU, for the Applicant

Mr P Copeland of Copeland Workplace Law, for the Respondent

Hearing details:

2015

12 May

Brisbane

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