[2015] FWC 2884 [Note: Appeals pursuant to s.604 (C2015/4001, C2015/4002, C2015/4003 and C2015/4004) were lodged against this decision - refer to Full Bench decision dated 22 July 2015 [[2015] FWCFB 4760] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Daniel Stickley
v
Kestrel Coal Pty Ltd
(U2014/13401)

COMMISSIONER SPENCER

BRISBANE, 28 APRIL 2015

Application for relief from unfair dismissal - jurisdictional objection - genuine redundancy - whether Respondent had an obligation to exhaust redeployment opportunities in associated entities, Rio Tinto Ltd and if so was this done.

Introduction

[1] This decision relates to an application made by Mr Daniel Stickley (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy alleging that the termination of his employment from Kestrel Coal Pty Ltd (the Respondent) was harsh, unjust or unreasonable. The Applicant was employed as an underground maintenance electrician at the Kestrel Underground Coal Mine under the Kestrel Coal Workplace Agreement 2009 (the Agreement).

[2] There are three other related applications which were heard jointly by consent with this application (U2014/13399 - Mr Tony McDonell, U2014/13400 - Mr Bevan Logovik and U2014/13402 - Mr Leslie Cochrane). Separate decisions in each matter have been issued, however, given the applications address similar issues there is some overlap of the evidence and commonality in the reasons.

[3] The Respondent raised a jurisdictional objection pursuant to s.385(d) in relation to the applications that the terminations of the Applicants’ employment were each due to genuine redundancy, and therefore they have not been unfairly dismissed. Where the Respondent raises a jurisdictional objection, the onus is on the Respondent to satisfy the Commission of their case. 1

[4] Directions were issued for the filing of submissions in relation to the jurisdictional objection and the substantive unfair dismissal applications. The Applicants’ primary argument, that the dismissals were not cases of genuine redundancy, was on the basis that the jobs were still required to be performed (s.389(1)(a)) (although this was not advanced in relation to Mr Stickley), and it would have been reasonable to redeploy the Applicants, within an associated entity of the Respondent: the Rio Tinto Coal Australia (RTCA) Group, of which the Respondent is a subsidiary company, or within the Rio Tinto Ltd Group (s.389(2)). The Applicants did not pursue the argument that requirement of consultation, as per s.389(1)(b), had not been met, however, they did not concede that it had been met by the Respondent.

Orders requiring the production of documents

[5] The Applicant had earlier made an application, for Orders requiring the production of documents, prior to the matters being allocated to the Commission, as currently constituted. On allocation for arbitration to the Commission as currently constituted, these matters had not yet been dealt with.

[6] In summary terms, the Applicants sought three Orders, directed to Kestrel Coal Pty Ltd (the Respondent), Rio Tinto Coal Australia Pty Ltd and to Rio Tinto Ltd.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] FWC 2884
Decision Date: 28 APRIL 2015

CaseChat Overview and Summary

Daniel Stickley, the applicant, applied for relief from unfair dismissal against Kestrel Coal Pty Ltd, the respondent. The dispute arose from the applicant's termination of employment, which the applicant claimed was unfair. The application was heard by the Fair Work Commission. The central issue for the court was whether the respondent had a duty to explore redeployment opportunities for the applicant within associated entities, specifically Rio Tinto Ltd, before proceeding with the dismissal. If such a duty existed, the court also needed to determine whether the respondent fulfilled this obligation.

The court examined whether the respondent was required to exhaust all possible redeployment avenues within its associated entities before dismissing the applicant. The court considered whether the association between the respondent and Rio Tinto Ltd created such an obligation and if so, whether the respondent had genuinely attempted to redeploy the applicant within Rio Tinto Ltd. The court evaluated the evidence presented regarding the respondent's efforts, or lack thereof, to redeploy the applicant and the nature of the association between the respondent and Rio Tinto Ltd. The court concluded that while there was an obligation to consider redeployment, the respondent had taken reasonable steps to fulfil this duty.

After considering the evidence and the arguments presented by both parties, the court found that the respondent had made reasonable efforts to redeploy the applicant within its associated entities. Consequently, the court ruled that the dismissal was not unfair. The court's decision was based on the respondent's compliance with its obligations regarding potential redeployment opportunities. The court dismissed the applicant's claim for relief from unfair dismissal.

Orders