Danial Coll v Foresite Training Pty Ltd T/A Foresite Training

[2016] FWC 2520

[2016] FWC 2520

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Danial Coll
v
Foresite Training Pty Ltd T/A Foresite Training
(U2015/15531)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 20 APRIL 2016

Application for relief from unfair dismissal.

[1] Mr Danial Coll was employed by Foresite Training Pty Ltd from 23 March 2014 until he was dismissed on 26 November 2015. 1 Mr Coll alleges he was unfairly dismissed. Foresite alleged that this was a genuine redundancy.

[2] The Fair Work Commission is required to determine this dispute before it considers whether the dismissal was unfair.

[3] To establish that there is a genuine redundancy the Commission must be satisfied that:

1. Foresite no longer required Mr Coll’s job to be performed by anyone because of changes in the operational requirements of the enterprise.

2. Foresite complied with its obligations under the Educational Services (Post- Secondary Education) Award 2010.

3. It was not reasonable in all the circumstances to redeploy Mr Coll within Foresite’s enterprise or an associated entity.

Did Foresite no longer require Mr Coll’s job to be performed by anyone because of changes in the operational requirements of the enterprise?

[4] Mr Nicholas Michael, the General Manager of Training and Quality, gave evidence that there had been a significant decline in students commencing civil construction courses in the latter half of 2015. 2 As a result there was a significant decline in revenue.3

[5] As a result, Foresite implemented measures to reduce costs. 4 In May 2015, there were 67 employees and at the end of November 2015 there were 44 employees. By the end of December 2015, the number had reduced to 41.5

[6] Foresite said that earlier in the year the student numbers supported three full time equivalent civil construction trainers at Epping and Truganina. As a result of the decline in numbers that number was no longer viable and there are currently three operating over the two sites each day. 6

[7] Two trainers at Truganina left voluntarily earlier in 2015. 7

[8] It was determined that there was a need to further reduce the number of training personnel in civil construction by one. Other non-training staff were made redundant around the same time. 8

[9] Mr Coll gave evidence that on 30 November 2015 Foresite employed a trainer Mr Damian Toomey to perform his role. 9 He said it was usual for numbers to drop off due to Christmas holidays and that Foresite was starting a new course schedule to boost numbers.10

[10] He said Foresite advertised for two civil construction trainer roles on 29 February 2016 which was the job he had previously performed.

[11] Mr Coll said he worked at all the branches, not just Epping, as well as working for an associated entity.

[12] Mr Michael gave evidence that Mr Toomey was employed as a casual and at the time he prepared his statement he had had one shift on a Saturday. He said he may have had one more since then. Further Mr Michael gave evidence that they had not employed any additional permanent civil construction trainers.

[13] Mr Coll submitted that it was not unusual for student numbers to decline at the end of the year because bodies that place students are reluctant to enrol them over the Christmas period.

[14] I am satisfied that Foresite had an operational reason to reduce the number of trainers in the civil construction field. While I accept that student numbers varied over time since April 2015 student numbers at two of the sites had reduced by 75%. It is clear that the number of students at these sites did not require six civil construction trainers. It was also clear from the figures that the revenue from civil construction training was declining. Some of this was attributable to falling numbers. While Mr Coll submitted that these figures were unreliable no evidence was called to support this submission.

Did Foresite comply with its obligations under the Educational Services (Post-Secondary Education) Award 2010?

[15] On 20 November 2015, staff at the three sites were briefed on the state of the business. While there was no mention of any potential redundancies Mr Coll gave evidence he was shocked at the tone of the meeting. Mr Maund, the CEO, and Mr Michael were present at the briefing. Mr Michael said that figures were presented to the meeting and staff were told that changes would need to be made. He said staff were told that they were looking at new business opportunities. Mr Coll said that it was suggested that they would change the way students commenced courses plus Forsite was looking at running more weeknights and Saturday courses. Mr Coll said that one of the trainers asked if they needed to get their resumes in order and was told no.

[16] After the meeting Mr Coll met with Mr Maund and Mr Michael. Mr Coll said the purpose of the meeting was to discuss his complaints about his direct supervisor. Mr Coll said he had attempted to resolve these complaints through HR but had not got anywhere. Mr Coll said that Mr Michael said that “we will have to get rid of one of you.”

[17] Mr Maund and Mr Michael said that the meeting was called to discuss with Mr Coll his availability to work on weekends and nights. They had heard that he was not available and they needed to confirm this information directly with Mr Coll. Mr Coll told them that he was not available to work nights and weekends. Mr Coll had previously been available to do this work but he was no longer able to work these shifts because of his other business interests and family reasons. Mr Coll was not told at this meeting that consideration was being given to making a civil construction trainer position redundant.

[18] On 24 November 2015, a decision was taken to make one of the civil construction trainer positions redundant. It was decided that Mr Coll would be made redundant. That decision was taken having regard to construction experience, availability to work weekends and nights, training experience and ability to train in a variety of programs.

[19] Mr Coll was called to a meeting on 26 November 2015. At that meeting he was told his position was redundant and he was provided with a letter setting out his entitlements. Mr Maund said that he told Mr Coll the reason for the decision. Mr Coll said that Mr Maund did not respond to his questions about why he was selected.

[20] The Award provides at clause 8 for consultation. I do not replicate the clause here it is in the standard form.

[21] Foresite relied upon the decision of the Full Bench in Ventyx v Murray, 11 to support its submission that it had consulted. In their decision the Full Bench considered the scope of the obligation to consult under the standard consultation clause in modern awards. It said:

“[45] Clause 9.1(b)(i) of the award does not require an employer to provide an opportunity for the employee to change the definite decision it has made. The award obligation, instead, requires the employer to discuss certain prescribed matters (the introduction of the changes, the likely effects of the changes, and to consider measures to mitigate the adverse effects of such changes).

[46] So far as the Deputy President used language that re-formulated the obligation under clause 9.1(b)(i) of the award (to mean the employer was obliged to give an employee an opportunity to change its decision), she fell into error.

[47] We note that Barnes J of the Federal Circuit Court in Ingersole v Castle Hill Country Club Limited [2014] FCCA 450 recently, and relevantly, commented in much the same manner about the proper construction of the award obligation:

145. It was also submitted for the Applicant that in substance cl.8 was an "ancient" clause that should have been construed as including a duty to consult to avert future changes (not merely the prejudicial effects of a decision that had already been made). Insofar as such contention was initially put on the basis that Judge Raphael was clearly wrong in his interpretation of the part of the clause considered in Qantas that was similar to cl.8.2(a) of the Award, this argument was not maintained. In any event, consistent with the principles of construction considered in Kucks, on the clear wording of cl. 8 of the Award it is apparent that no consultation is required until a definite decision has been made and then the consultation envisaged is as set out in cl.8.2(a), in relation to the introduction and likely effects of the changes decided upon and measures "to avert or mitigate the adverse effects of such changes on employees", not to avert (or avoid) the changes themselves.

[...]

149. Insofar as the Applicant maintains the contention that the construction of cl.8 of the Award is in doubt, having regard to the particular clause in question and the general principles of construction considered in Qantas and cases referred to therein, I am satisfied that the wording of cl.8 of the Award makes it clear that the obligation to consult does not arise unless and until a definite decision has been made by the employer. In other words, the obligation under cl.8 is not an obligation to consult on mere proposals or possible major changes which, if adopted, would have the effect of introducing major changes likely to have significant effects on employees (such as termination of employment).

[...]

151. Even though in one sense a definite decision to introduce a change consisting of a termination of employment would be a "fait accompli" before the mandated discussions were to commence (Municipal Officers Association at [3 9]), the rationale and scope for a requirement of consultation in such a case is clear on the language of cl. 8 of the Award, in particular cl.8.2(a). It extends to the introduction of the changes about which there has been a definite decision, the effects such changes are likely to have on employees and measures to avert or mitigate the adverse effects on employees of such changes. I am satisfied that the obligation on the Club under the Award was to notify, consult and discuss in relation to the results or effects of changes that the Club had made a definite decision to introduce. [Our emphasis]”

[22] In that decision the Full Bench found that Ventyx had not complied with its obligation to consult because it had not given prompt consideration to matters raised by Mr Murray. It said as follows:

“[74] We note that where an employer elects to provide a limited period within which to discuss matters consequential of a decision to make a definite change in its business, difficulties may arise in relation to an award-derived obligation to “give prompt consideration to matters raised by the employees and/or their representatives in relation to the changes”. That is very much the issue that arose in this matter. 12”

[23] Consultation must be real and not illusionary. So much is clear from the jurisprudence associated with these clauses.

[24] The Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008 required the Australian Industrial Relation Commission to commence the award modernisation process. That Act provided that modern awards may include terms that provided procedures for consultation, representation and dispute resolution. The Full Bench of the AIRC, when it developed the model consultation clause, said as follows:

“Consultation

[18] We have decided to include award obligations upon employers to notify employees and their representatives of significant workplace change and to discuss the change. The draft clause is in similar form to the provision introduced by the Commission more than 20 years ago. We propose that the draft clause be a standard one in modern awards."

[25] The reference to the provision introduced more than 20 years ago was a reference to the Termination, Change and Redundancy Case where the Full Bench of the Australian Conciliation and Arbitration Commission said:

"Nevertheless, we believe that it is of fundamental importance to involve employees and their representatives in the problems of redundancy as soon as a firm decision has been taken that retrenchments may be necessary and we are prepared to make an award provision to that effect.

We have taken the expression "as soon as a firm decision has been taken" from the NLAC Guidelines and we are not prepared to go any further, particularly having regard to the fact that our decision will apply to redundancy, whatever may be the cause.

However, we would indicate that we are not opposed to the concept of a timetable for discussions and the provision of suitable material. Indeed, we feel that sufficient time must be allowed and sufficient material provided if discussions are to be satisfactory. Nevertheless, we are not prepared to award general and detailed provisions such as those set out in the union claim.

We agree with, and are prepared to adopt the conclusions of the NLAC Guidelines, that "the arrangements may vary with regard to the type and extent of the change, or the needs of particular situations", particularly as our decision extends beyond redundancy caused by technological change.

In these circumstances, we will make only a limited award prescription relating to the procedure to be adopted. This limited prescription is also based on the NLAC Guidelines.

We will provide:

"For the purposes of the discussion the employer shall as soon as practicable provide in writing to the employees concerned or their union or unions all relevant information about the proposed terminations including the reasons for the proposed terminations the number and categories of employees likely to be affected the number of workers normally employed and the period over which the terminations are likely to be carried out Provided that any employer shall not be required to disclose confidential information the disclosure of which would be inimical to its interests."

[26] In its supplementary decision, 13 the Full Bench in relation to consultation about redundancy determined the appropriate clause to be adopted, was as follows:

"We consider that the following provisions would be suitable for inclusion in any award variation which may follow from our decision of 2 August 1984:

1.(a) Where an employer has made a definite decision that he/she no longer wishes the job the employee has been doing done by anyone and this is not due to the ordinary and customary turnover of labour and that decision may lead to termination of employment, the employer shall hold discussions with the employees directly affected and with their union or unions.

(b) The discussions shall take place as soon as is practicable after the employer has made a definite decision which will invoke the provision of clause (a) hereof and shall cover, inter alia, any reasons for the proposed terminations, measures to avoid or minimise the terminations and measures to mitigate any adverse effects of any terminations on the employees concerned.

(c) For the purposes of the discussion the employer shall, as soon as practicable, provide to the employees concerned and their union or unions, all relevant information about the proposed terminations including the reasons for the proposed terminations, the number and categories of employees likely to be affected, and the number of workers normally employed and the period over which the terminations are likely to be carried out. Provided that any employer shall not be required to disclose confidential information the disclosure of which would be inimical to its interests.

(d) This clause shall not apply to employers who employ less than 15 employees."

[27] Subsequent to these decisions, these provisions became standard clauses in awards made by the Fair Work Commission and its predecessors. As well similar provisions were adopted to deal with the situation where there had been a definite decision to introduce major change.

[28] A Full Bench 14 of the Commission considered what the obligation to consult meant when it considered the amendments to be made to modern awards arising from the Fair Work Amendment Act 2013 which provided that all modern awards must include a term requiring employers to consult employees about a change to their regular roster or ordinary hours of work.

[29] As that decision said:

"the right to be consulted is a substantive right. It is not to be treated perfunctorily or as a mere formality. Inherent in the obligation to consult is the requirement to provide a genuine opportunity for the affected party to express a view about the proposed change in order to seek to persuade the decision maker to adopt a different course of action." 15 

[30] It is clear from these decisions that one way the impact of the decision could be mitigated is if the employee is able to convince the employer through the discussion to "adopt a different course of action". One way that may occur is if the employee provides information to the employer that causes it to reconsider the rationale of its decision.

[31] Here the obligation to consult arose after 24 November 2015, once the definite decision was made. I am satisfied that the delay of one day in having the discussion with Mr Coll was not fatal to the question of whether Foresite complied with its obligations.

[32] I accept that Mr Coll and Mr Maund have different recollections of the conversation that occurred on 26 November 2015. This is not surprising. Mr Maund had matters he wanted to say and Mr Coll was confronted with advice about his position being redundant. I accept that Mr Maund explained the reasons for the decision and I accept that Mr Coll sought an explanation for the reasons he was selected. I accepted that Mr Maund did not satisfactorily explain the selection process to Mr Coll.

[33] However there was no evidence that Mr Coll put forward any measures that Foresite could have taken to avoid or minimise the termination and measures to mitigate any adverse effects of any termination on the employees concerned. Mr Coll did not ask for the meeting to be adjourned to enable him to seek representation and take advice. I make no criticism of Mr Coll in this because I accept that he was given no notice of the meeting and was therefore unprepared for such a discussion. I accept the submission that Foresite had made up its mind about the decision and Mr Maund confirmed that there was nothing that could have been said that would have changed his mind.

[34] The obligation to consult arose when Foresite decided to reduce the number of trainers in civil construction by one. It should have advised all the civil construction trainers of that decision as all the trainers were affected employees. They should have been provided with an opportunity to discuss that decision. The employees may have been able to put forward measures to avert or mitigate the adverse effects of such changes on employees. By only notifying Mr Coll after the decision was taken to select him for redundancy no such discussion was able to occur.

[35] I accept that Mr Coll was not provided with an opportunity to persuade Foresite that in selecting him for redundancy it had not had regard to his skills and experience. Such a discussion may have changed nothing but as has been stated many times, consultation must be real. I therefore find that Foresite did not comply with its obligations under the Award to consult with Mr Coll.

Was it reasonable in all the circumstances to redeploy Mr Coll within Foresite’s enterprise or an associated entity?

[36] Mr Michael gave evidence that there were no vacant positions in the business. This evidence was not challenged. While it was submitted that Mr Coll could have been retrained that issue does not arise if no vacancies exist. I therefore find that it was not reasonable to redeploy Mr Coll.

[37] I have found that Foresite did not comply with its obligations to consult and therefore it was not a case of genuine redundancy.

Harsh, unjust or unreasonable?

[38] It is therefore necessary to determine if the termination was harsh, unjust or unreasonable.

[39] In determining this question matter the Full Bench decision in UES (Int’l) Pty Ltd v Leevan Harvey 16 is relevant.

[40] The Full Bench held that s.387(a) of the Act only has relevance if the reason for the dismissal related to the person’s capacity or conduct. As was conceded in this matter but for the operational requirements or if redeployment had been available Mr Coll would not have been dismissed. Consistent with the principles enunciated in UES, Mr Coll’s dismissal did not relate to his capacity or conduct in the requisite sense 17 and is therefore a neutral consideration.

[41] Sections 387(b) and (c) deal with the procedural fairness in respect of the reason for dismissal related to Mr Coll’s capacity or conduct. Accordingly and consistently with UES, this is a neutral consideration. 18

[42] Foresite did not unreasonably refuse to permit Mr Coll to have a support person (s.387(d)). This is a neutral consideration.

[43] Mr Coll’s dismissal was not related to any unsatisfactory performance (s.387(e)). This is a neutral consideration.

[44] No submissions were made that the criteria in ss.387(f) and (g) had any application in this matter.

[45] It was submitted that Mr Coll was an excellent employee with good standing and reputation with staff and students. This was not disputed by Foresite. However Mr Coll’s submission that he was the most technically qualified person was disputed by Foresite. Mr Michael gave evidence that there were other trainers who were able to train in more areas of the curriculum than Mr Coll. That evidence was not challenged by Mr Coll and he did not give evidence that supported the submission made on his behalf.

[46] Mr Coll submits that he was selected for redundancy because he complained about his immediate supervisor. I do not accept this submission but even if it were correct it is clear that if an employee considers that they have been selected for redundancy for a reason prohibited by the Act, then the appropriate remedy is a general protections application not an unfair dismissal application. 19

[47] I have had regard to the lack of consultation with Mr Coll but as was acknowledged in UES, a failure to consult does not make a dismissal harsh, unjust or unreasonable. 20 In this case however, I consider the failure to consult was unreasonable. Had Foresite advised all its trainers in civil construction that it had made a decision to reduce the number of trainers by one, they may have been able to propose measures to avert or mitigate the adverse effects of such changes on employees. Employees may have been interested in job sharing for example. Foresite would have of course retained the right to select who it considered the most appropriate person to be made redundant. I therefore find that the termination of Mr Coll was unreasonable.

Remedy

[48] Mr Coll is seeking reinstatement of his employment. However given that Foresite had operational reasons for reducing the head count and there was no evidence that Foresite had a vacancy for a permanent trainer, and Mr Coll did not give evidence that he was interested in a casual trainer position, I am satisfied that reinstatement is not appropriate in all the circumstances.

[49] In assessing any amount in lieu of reinstatement, Fair Work Commission is required to have regard to the following:

(a) the effect of the order on the viability of the employer’s enterprise;

[50] There was no submission or evidence that any order would affect the viability of the employer’s enterprise.

(b) the length of the person’s service with the employer;

[51] Mr Coll was not a long serving employee.

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed;

[52] I consider that Mr Coll would have remained in employment for another week. This would have allowed consultation to have occurred. I accept however given the need to have trainers who were willing to work at nights and weekends and to be able to train across the civil construction program Mr Coll would still have been selected for redundancy.

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal;

[53] Given my decision this is not a relevant consideration.

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation;

[54] Given my decision this is not a relevant consideration.

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation;

[55] Given my decision this is not a relevant consideration.

(g) any other matter that the Commission considers relevant.

[56] There are no other matters I consider to be relevant.

Conclusion

[57] I therefore order that Foresite pay Mr Coll one week’s pay being $1,153.85 plus $109.62 to Mr Coll’s superannuation fund within 14 days of the date of this decision.

DEPUTY PRESIDENT

Appearances:

A. Sachinidis on behalf of the Applicant.

J. Maund for the Respondent.

Hearing details:

2016.

Melbourne.

April 18.

<Price code C, PR579300>

 1 F2 Application filed by the Applicant. I note that he gave evidence that he commenced casual employment prior to this date.

 2   Exhibit R1 at [2(a)]

 3   Ibid at [2(b)]

 4   Exhibit R2 at [2(e)]

 5   Ibid at [2(f)]

 6   Ibid at [2(h)]

 7   Ibid at [2(i)]

 8   Ibid at [2(j)]

 9   Exhibit A1 at [3]

 10   Ibid at [4]

 11   [2014] FWCFB 2143

 12   Ibid at [74]

 13 (1984) 9 IR 115

 14   [2013] FWCFB 10165

 15   Ibid at [31]

 16   [2012] FWAFB 5241

 17   Ibid at [32]

 18   Ibid at [43]

 19   Explanatory Memorandum at [1553]

 20   [2012] FWAFB 5241 at [49]

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