David Cameron v Transfield Services (Aust) Pty Ltd

[2012] FWA 3799

[2012] FWA 3799

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Cameron
v
Transfield Services (Aust) Pty Ltd
(U2011/14817)

COMMISSIONER BISSETT MELBOURNE, 4 MAY 2012

Application for unfair dismissal remedy.

Background

[1] This is an application by Mr David Cameron (the Applicant) for relief from unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Cameron was employed by Transfield Services (Aust) Pty Ltd (the Respondent or Transfield). He commenced his ongoing employment with the Respondent on 12 January 2009. He was employed in the civil crew at the Altona Shell Refinery site. In addition to the civil crew, Transfield also had on site a mechanical and an electrical crew.

[3] As is relevant to this matter, Transfield also had an additional but separate civil crew working at the Mobil Yarraville site.

[4] In October through to December Transfield undertook the shutdown maintenance at the Altona site. This involved a substantial increase in resources on the site supplied by Transfield as well as other contractors. During this period the work of the civil crew was suspended and the civil crew employees were redeployed to other tasks on the site including as tradesman assistants (TAs) to the mechanical crew or to other areas. Mr Cameron was one of those allocated to alternative work to support the shutdown.

[5] On 17 November 2011 Mr Mark Rowles of the Respondent met with Mr John Duggan, CFMEU organiser, and Mr Rob Bennett, CFMEU site delegate, and advised them of the downturn in work requirements from Mobil and likely redundancies. At the request of the CFMEU Mr Rowles addressed the affected employees in the civil crew from the Altona and Yarraville sites on or about 21 November 2011 where he advised of the reduction in staffing and likely redundancies.

[6] At the completion of the shutdown Mr Cameron was then allocated to the scaffolding crew to assist in the dismantling of the scaffolding used during the shutdown. At the completion of the scaffolding removal on 16 December 2011 Mr Cameron was advised that he was redundant and his employment was terminated.

[7] Mr Cameron subsequently lodged an application for relief from unfair dismissal.

[8] Transfield Services argue that Mr Cameron’s dismissal is a genuine redundancy and that he therefore was not unfairly dismissed.

Legislative provisions

[9] The Act states:

385 What is an unfair dismissal

A person has been unfairly dismissed if FWA is satisfied that:

(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.

…

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.

[10] Section 396(d) of the Act requires that, prior to determining the merits of an application, Fair Work Australia must decide whether the dismissal was a case of genuine redundancy.

[11] The first matter to be determined therefore is if the dismissal of Mr Cameron was a genuine redundancy by reference to the meaning of genuine redundancy in s.389 of the Act.

Evidence

Applicant

[12] Mr Cameron gave evidence on his own behalf. His evidence is that he has a range of tickets (qualifications/licenses):

You said that you had tickets, do you want to explain what they are?---One Bobcat, excavator, heavy to articulated truck licence, EWP ticket, boom lift ticket, scaffold – advanced scaffold ticket that I've just done. I had the intermediate for a lot of years. Confined space training, BA training, JSA training. So I've pretty much got all my safety tickets that I need.

So EWP, is that elevated work platform?---Elevated work platform, yes.

And JSA is job safety analysis?---Yes. 1

[13] He has worked on a number of shutdowns for Transfield prior to his ongoing job with Transfield at Altona. On each of these shutdowns he knew he would work only for the period of the shutdown and would finish when the shutdown was complete.

[14] Mr Cameron recalls a meeting late in the day in November 2011 of the civil crew from Altona and Yarraville. He says only the civil crew were at the meeting (and not the mechanical or electrical crew) as the civil crew were CFMEU members. The meeting was addressed by Mr Rowles who talked about the reduction in crew levels at Yarraville and that maybe a couple of the Altona crew would have to go as well. Mr Duggan from the CGMEU was also present.

[15] Mr Cameron’s evidence is that ‘we all come in for the meeting. The Yarraville boys were coming down. We already had whispers that Yarraville had no money left and they were going to do a cut down there and it might affect a couple of our labourers and that's all I knew.’ 2

[16] Mr Cameron’s evidence is that Mr Rowles also said that whoever was laid off would get offered work first (when work at the site picked up again).

[17] After Mr Rowles left the meeting Mr Duggan stayed and the Yarraville employees were all talking to him because they were losing their jobs.

[18] Mr Cameron says he expected to return to his civil crew at the end of the shutdown but Mr Rowles asked him to go and work in scaffold take down. No particular reason was given to him to go there and he still assumed he would return to the civil crew when the scaffolding work finished.

Mr Rowles

[19] Mr Rowles gave evidence for the Respondent. Mr Rowles is the site superintendent, looking after the civil, mechanical and electrical workforce on behalf of Transfield with some accountability with respect to some of the third party contractors. He deals with employment, discipline, redundancies, planning of work and hiring and firing. 3 Prior to the shutdown there were about 25 civil workers - 10 at the Yarraville site and 15 at Altona. The civil crew do

Everything from excavation work to pipe racking...some sand blasting...or grip blasting...[t]hey do labouring type work, concreting, they may do some shoring work, it just varies...[T]he tasks were around those civil activities...machinery, digging, unearthing pipes...some road works. 4

[20] Mr Rowles’ evidence is that there is no question as to the competence of the Applicant or his work ethic. 5

[21] In his responsibility for work planning Mr Rowles regularly meets with Mobil management (the client) at the site to determine its work program and the crew demands to meet the work program. Mr Rowles described the process as Mobil providing a 12-week ‘look ahead’ with a two-week work plan 6 that dictates the skills needed by Transfield on site. During the shutdown a 12-week ‘look ahead’ meeting was held. At that time it became apparent to Mr Rowles that the civil crew requirements post the shutdown would be in the order of five to seven employees at Altona and a similar number at Yarraville.7

[22] Mr Rowles and Mr de Luca (Project Manager) met with Mr Duggan, the CFMEU organiser, and Mr Bennett, the CFMEU site delegate, on 17 November 2011 and advised them of the downsizing and that there was unlikely to be any upswing in the work until after the new year. He gave to Mr Duggan a list of employees of the Respondent that had already volunteered for redundancy and explained to him the other options he was looking at to try and relocate employees. 8

[23] At Mr Duggan’s request Mr Rowles addressed the civil crew from Yarraville and Altona on 21 November 2011. At this meeting he says he told the workers that things did not look good and of the projected work at the site. He says he may have mentioned the figure of five to seven employees being kept on. Mr Rowles denies that he told the employees that only one or two labouring jobs would be lost at Altona. 9

[24] Mr Rowles says that after he spoke there were few questions and that everyone was quiet.

[25] Mr Rowles says that, beyond the meeting on 17 November 2011 and the meeting with employees on 21 November 2011, he had no more contact from or with the CFMEU. A number of workers at Yarraville had already put their hand up for redundancy. A number of workers at Altona had also come forward as they had heard the numbers were reducing.

[26] Mr Rowles said that he attempted to keep the permanent crew on for as long as possible. For this reason he transferred Mr Cameron to the scaffolding area. He says he was approached by a number of workers around this time who asked him about the situation or volunteered for redundancy. He says he had no contact with the Applicant.

[27] Mr Rowles used his personal contacts to try and assist those workers laid off to find alternative work. All bar two of the workers gained alternative employment either themselves or through his contacts. Of the two he has not been able to assist, the Applicant is one.

[28] Mr Rowles says he is generally conversant with the applicable enterprise agreement.

[29] Mr Rowles did an assessment of each member of the civil crew. He attached to his statement the assessment used for the electrical crew but did not include the actual assessment of the Applicant. Mr Rowles said he disagreed with the Applicant on how the Applicant believed he should have been assessed but he did not say to the Applicant ‘it is all about the dynamics.’

[30] Mr Rowles said that when the Applicant dropped his annual leave application off on 15 December 2011 he had still not decided who would be staying and who would be made redundant. He did not have a conversation with the Applicant at this time as he was on the phone. It was not unusual for him to be on the phone and the crew would often come in and drop leave applications off without his having any conversation with them. He said he made the final decision that the Applicant should be (one of those) made redundant late on 15 December 2011. Mr Rowles rejected any suggestion that the Applicant was made redundant because of a Workcover claim.

[31] Mr Rowles gave evidence that he was aware of the Transfield office in Malvern and that there was a headquarters in Sydney. He did not speak to anyone at the Malvern or Sydney offices about any redeployment opportunities that might be available for the Applicant. Rather, he relied on his personal contacts to try and find work for those who had been made redundant.

[32] Mr Rowles’ evidence is that two employees have been taken on at Altona since the Applicant was made redundant. One of these has specific surveying skills. The other person was employed as a ‘dingo’ driver (a dingo being a small bobcat). Mr Rowles said that the Applicant was not suitable for this job as he did not have a license to operate the machinery. 10

[33] Mr Rowles gave further evidence that some of the crew from Altona had been employed at the Qenos site, some 800 metres from the Mobil Altona site, with Transfield. One of those employees was a scaffolder at Altona. Mr Cadero, who was responsible for scaffolding at Altona (during the shutdown), was responsible for scaffolding at Qenos.

Submissions

Applicant

[34] Mr Wainwright for the Applicant submits that the termination of the Applicant’s employment was not a genuine redundancy as defined in s.389 of the Act in that there was an ongoing requirement for the work done by the Applicant as is evidenced in part by the employment of a dingo driver (which Mr Wainwright submits the Applicant is qualified to do), the Respondent failed to comply with the requirements of the relevant enterprise agreement with respect to consultation and the Respondent failed to redeploy the Applicant when it was reasonable in all of the circumstances to do so. Even if it was accepted that Mr Rowles’ address to the civil crew on 21 November 2011 was consultation, this occurred well before any definite decision had been taken to terminate the Applicant’s employment, this decision having not been made until 15 or 16 December 2011.

[35] Mr Wainwright submits that Transfield is a large multi-national company. It has 26,000 employees worldwide. It has a state office in Malvern in Victoria and a national office in Sydney. It has experienced IR and HR professionals working for it. There was no reason given as to why the Respondent made no effort to seek to find alternative employment for Mr Cameron. Given the size of the company it would have been reasonable for the company to attempt to redeploy Mr Cameron.

[36] Mr Wainwright submits that, should I find that the termination of the Applicant’s employment was not a genuine redundancy, there was no valid reason for the termination of employment and I should therefore find the termination harsh, unjust or unreasonable.

[37] Mr Cameron is seeking reinstatement without loss of income.

Respondent

[38] Mr Koletsis of the Respondent submits that the Applicant’s employment was terminated due to a genuine redundancy. He submits that the employer followed the established consultative process on the work site with the CFMEU. In addition Mr Rowles spoke directly to all the civil crew likely to be affected by the changes. Further, Mr Koletsis suggests that the consultative process is a two way process and that, if the Applicant had any concerns, he could have approached Mr Rowles, as other employees had done, to clarify the situation. Mr Koletsis also submits that the Respondent sought to find alternative employment for the Applicant. Mr Rowles attempted to do so through his contacts and the Respondent organisation also sought to do so but without success.

[39] Mr Koletsis submits that the Respondent had no option but to reduce its crew levels at Altona from 25 to five or so employees.

[40] The Respondent left it for as long as possible prior to making the Applicant redundant as it hoped it could secure ongoing work for him.

[41] Mr Koletsis submits that the Respondent has a well established redeployment process and that this was utilised with respect to Mr Cameron.

[42] The termination of the Applicant’s employment was a genuine redundancy and therefore not harsh, unjust or unreasonable.

Consideration

[43] This is an application for relief from unfair dismissal. If the termination of the Applicant’s employment is, in fact, a genuine redundancy then the matter is at an end as the termination of employment cannot be unfair if it is a genuine redundancy. The first matter to be determined therefore is if this is a genuine redundancy. The relevant matters to determine are those set out in s.389 of the Act (above).

Was the Applicant’s job no longer required to be performed by anyone?(s.389(1)(a))

[44] I accept the evidence of Mr Rowles that the Respondent was advised by the client that the future work requirements of that carried out by the civil crew would be reduced following the shutdown. From this it was clear that the number of employees on the civil crew would be less than that required prior to the shutdown.

[45] The evidence was not contested that there were 25 employees on the civil crew across Altona and Yarraville prior to the shutdown but only five or so would be required at each site post the shutdown.

[46] The Full Bench in Ulan Coal Mines Limited v Henry Jon Howarth and others 11(Ulan Coal), after considering relevant authority and the Explanatory Memorandum to the Fair Work Bill 2008 concluded that:

It is noted that the reference in the statutory expression is to a person’s “job” no longer being required to be performed. As Ryan J observed in Jones v Department of Energy and Minerals (1995) 60 IR 304 a job involves “a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employees’ organisation, to a particular employee” (at 308). His Honour in that case considered a set of circumstances where an employer might rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly-created positions. In these circumstances, it was said that (at 308):

What is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the re-organisation, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position becomes redundant… (at 308)

This does not mean that if any aspect of the employee’s duties is still to be performed by somebody, he or she cannot be redundant (see Dibb v Commissioner of Taxation (2004) FCR 388 at 404-405). The examples given in the Explanatory Memorandum illustrate circumstances where tasks and duties of a particular employee continue to be performed by other employees but nevertheless the “job” of that employee no longer exists. 12

[47] Applying the principles from Ulan Coal and on the basis of the evidence before me I find that the Respondent no longer required the Applicant’s job to be performed by anyone because of changes in the operational requirements of the Respondent. That these changes were brought about by changed requirements of the client does not affect the finding.

Did the Respondent comply with the consultative requirements of the relevant Enterprise Agreement? (s.389(1)(b))

[48] The work performed by the Applicant was covered by the Transfield Services, Mobil Refinery Altona Building and Construction Industry Enterprise Agreement 2009-2012 (the Agreement). The Agreement was approved by Watson SDP on 2 December 2009. In his decision approving the Agreement his Honour noted that the Agreement did not contain a consultation clause and hence, pursuant to s.205(2) of the Act, the model consultation clause was taken to be a term of the Agreement. 13

[49] The model consultation clause is found in the Fair Work Regulations. 14 The model clause provides:

(1) This term applies if:

(a) the employer has made a definite decision to introduce a major change to production, program, organisation, structure, or technology in relation to its enterprise; and

(b) the change is likely to have a significant effect on employees of the enterprise.

(2) The employer must notify the relevant employees of the decision to introduce the major change.

(3) The relevant employees may appoint a representative for the purposes of the procedures in this term.

(4) If:

(a) a relevant employee appoints, or relevant employees appoint, a representative for the purposes of consultation; and

(b) the employee or employees advise the employer of the identity of the representative;

the employer must recognise the representative.

(5) As soon as practicable after making its decision, the employer must:

(a) discuss with the relevant employees:

(i) the introduction of the change; and

(ii) the effect the change is likely to have on the employees; and

(iii) measures the employer is taking to avert or mitigate the adverse effect of the change on the employees; and

(b) for the purposes of the discussion — provide, in writing, to the relevant employees:

(i) all relevant information about the change including the nature of the change proposed; and

(ii) information about the expected effects of the change on the employees; and

(iii) any other matters likely to affect the employees.

(6) However, the employer is not required to disclose confidential or commercially sensitive information to the relevant employees.

(7) The employer must give prompt and genuine consideration to matters raised about the major change by the relevant employees.

(8) If a term in the enterprise agreement provides for a major change to production, program, organisation, structure or technology in relation to the enterprise of the employer, the requirements set out in subclauses (2), (3) and (5) are taken not to apply.

(9) In this term, a major changeis likely to have a significant effect on employees if it results in:

(a) the termination of the employment of employees; or

(b) major change to the composition, operation or size of the employer’s workforce or to the skills required of employees; or

(c) the elimination or diminution of job opportunities (including opportunities for promotion or tenure); or

(d) the alteration of hours of work; or

(e) the need to retrain employees; or

(f) the need to relocate employees to another workplace; or

(g) the restructuring of jobs.

(10) In this term, relevant employees means the employees who may be affected by the major change.

[50] Mr Wainwright submits that there is no evidence that the Applicant appointed anyone to represent him in consultation under the clause and therefore the obligation is on the Respondent to consult directly with the Applicant. There is no evidence that the Applicant was even a member of the CFMEU, let alone had appointed the CFMEU to act on his behalf in the consultation process.

[51] Mr Wainwright says that the Respondent did not properly notify the Applicant of the major change; did not discuss with the Applicant the introduction of the change, the effect of the change or measures taken to mitigate the effect of the change; and did not provide to the Applicant, in writing, information with respect to the change and the effect of that change.

[52] Further, Mr Wainwright suggests that the consultation with the Applicant should have occurred after a definite decision had been taken to terminate the Applicant’s employment due to redundancy, which occurred on 15 or 16 December 2011.

[53] The Respondent submits that it did consult with officials of the CFMEU and further Mr Rowles addressed the workers on 21 November 2011 where he outlined the change, the effect of the change in terms of the likely number of jobs affected and what actions were being taken to mitigate the adverse effects of the change by attempting to source alternative work.

[54] On the question of when consultation with the Applicant should have occurred, in my opinion the consultation provisions are clear - consultation should occur as soon as practicable after the employer has made a definite decision to introduce major change that is likely to have a significant effect on employees. The ‘decision’ referred to in paragraph 5 of the model clause is the ‘decision’ referred to in paragraph 1. It is not, in this context, the final decision to make an individual redundant that drives the requirement to consult. To leave consultation until this point would make the consultation of little use to employees in the workplace and provide them with little or no opportunity to suggest alternatives or have any influence on the outcome.

[55] I find that the Respondent did initiate consultation at the appropriate time, that is following an understanding of the work demands of the client and the effect this was likely to have on employee numbers.

[56] The Respondent consulted with the organiser and site delegate of the CFMEU in the first instance on 17 November 2011. It is true that there is no evidence that any of the employees concerned had appointed the CFMEU to represent them in such discussions and it appears that, following the 17 November 2011 meeting and the organiser being present on 21 November 2011, there was no further contact with the CFMEU.

[57] The discussion with the CFMEU, however, was followed by a briefing of all affected employees from Altona and Yarraville on 21 November 2011. There is some dispute between the witness accounts of the Applicant and Mr Rowles as to what occurred at that meeting.

[58] Both the Applicant and Mr Rowles were witnesses of credit. Each was articulate and forthright in their evidence. One matter on which their evidence was contradictory goes to what was said at the meeting on 21 November 2011. On this matter I prefer the evidence of Mr Rowles. The Applicant attended that meeting with a fixed view as to what was to occur with redundancies - that is that the Yarraville workers would be made redundant and maybe one or two labourers at Altona. He said that this was common knowledge. In this respect I expect that he heard no more than he expected to hear at the meeting as opposed to listening to what was being said. His evidence was what he genuinely believed he heard at the meeting but I do not consider that he heard all that was said. There was no reason for Mr Rowles to mislead the workers about future work prospects at the site. I accept the remainder of Mr Rowles’ evidence that various employees approached him to volunteer for redundancy. I accept that he met with the union officials and told them what was occurring with future work demands and the impact of this on the civil crew. It would be incongruous to find that he was honest and open about the extent of staff losses at all times and that employees approached him to volunteer for redundancy but find he did not tell the employees on 21 November 2011 of the extent of the likely job losses. Staff from both Altona and Yarraville volunteered for redundancy, some in response to what they heard from Mr Rowles at the meeting, that there would be jobs lost at both sites.

[59] I find therefore that Mr Rowles did tell the employees on 21 November 2011 that there would be job losses at both Yarraville and Altona and that there might be five to seven jobs kept in the civil crew at each site. I also find that he did say to employees that he would attempt to find work for them where he could.

[60] No evidence was given, and I do not find, that the Respondent provided to employees in writing any information relevant to the change occurring and the effect this was likely to have as required in paragraph 5(b) of the clause.

[61] There is nothing in the consultation clause to suggest that the discussions with affected employees needed to be conducted on an individual basis. The requirement in the model clause is for the employer to discuss the specified matters with the relevant employees. It does not specify that it must be done with each employee individually. In my opinion there is no hard and fast rule that can or should be applied to this. In some circumstances individual discussions will be appropriate, in others discussions can properly occur in a group situation as occurred in this case.

[62] The Respondent says that it undertook consultation as it has in the past with the relevant union official. This may be so but the parties, in negotiating the Agreement, chose not to include a tailored consultation clause. It is the Respondent’s responsibility to be aware of the content of the Agreement and apply the clauses contained therein as required. It will, I expect, know in the future that the requirement to consult is with the employees and only with their representatives if they are so appointed.

[63] Whilst the Respondent has met most of the requirements of the consultation clause I find that it did not meet all of its obligations under the clause in that it failed to provide the required information in writing.

Was it reasonable in the circumstances to redeploy the Applicant? (s.389(2))

[64] Having found that the Respondent has not met the requirements of s.389(1)(b) of the Act in that it did not meet the consultation obligations in the Agreement, it must be that the dismissal of the Applicant is not a case of genuine redundancy. It is not strictly necessary that I deal with s.389(2) of the Act. This matter, however, was argued before me and, for completeness, it is appropriate that I express a view on the question of redeployment. Further, this is a matter that is relevant to considerations below.

[65] Mr Rowles gave evidence that he sought to use his contacts in an attempt to find the Applicant (and others made redundant) alternative employment. These contacts were both within and outside Transfield. I do not fault Mr Rowles on his efforts. Ultimately, only two of those made redundant (including the Applicant) were not found alternative employment. Mr Rowles’ efforts in assisting the affected workers should be commended. I accept that he put his best efforts into the task. But redeployment is not a responsibility that rests on his shoulders. Transfield is a large multinational company. It has over 26,000 employees world-wide. It has an administration office in Melbourne and a national office in Sydney. There appear to be resources well beyond Mr Rowles that should have been put to the task of finding redeployment for the Applicant.

[66] There is, however, no evidence that Transfield, as an organisation, did anything to assist the Applicant in redeployment. Mr Koletsis for the Respondent sought to give submissions from the bar table to this effect but Mr Wainwright objected to these and I give no weight to the Respondent’s submissions on this matter. The Respondent was well aware that the Applicant disputed that his dismissal was a genuine redundancy. It had ample opportunity to call witnesses or provide material to support submissions it chose to make on efforts to redeploy the Applicant. It did not do so. Further, Mr Koletsis failed to cross examine the Applicant on any efforts the Respondent had made to assist him in redeployment. It is too late in submissions to attempt to tell the Tribunal of efforts made to redeploy the Applicant when such evidence could and should have been dealt with earlier.

[67] During the hearing of this application it became apparent that two people had been employed at the Altona site since the dismissal of the Applicant. One of those employed had specialised skills in surveying. The second position was as a dingo driver. Mr Rowles gave evidence that the Applicant was not considered for this position as he did not have the necessary qualifications to undertake the work. Mr Wainwright suggested that the Applicant could perform the work. Had the Applicant’s leave that he applied for on 15 December 2011 been approved instead of him being made redundant he would have been returning to work at about the time the dingo driver was employed.

[68] As the question of whether or not the Applicant could fill a position as dingo driver was a new matter that arose during the hearing I asked each of the parties to provide me with information as to the qualifications and skills required to operate a dingo. I have received and considered this information. I accept the advice from the Applicant’s representative that there are no specific qualifications or ‘tickets’ required to operate the dingo. I also accept the advice from the Respondent that any operator of such machinery should be competent and have received necessary instruction.

[69] The Applicant’s uncontested evidence is that he has a range of tickets that enable him to undertake the type of work he did for the Respondent. Some of these tickets relate to work with machinery including an excavator and a bobcat. There is nothing to suggest he would not have been capable of being trained to safely and competently operate a dingo.

[70] I make no further finding on this specific issue because it is not necessary to enable me to dispense with the application and I expect more detailed consideration and submissions would be required to make a full assessment.

[71] To determine if it would have been reasonable to redeploy the Applicant within the Respondent’s enterprise attempts at redeployment should have been undertaken by the Respondent. No such attempts were made. Instead it relied on the efforts of a local supervisor.

[72] I am cognisant of the size of the Respondent’s business. I am also aware, on the basis of material provided to me by the Respondent, of the breadth of work undertaken by the Respondent. Taking all of this into account I find that it would be reasonable in the circumstances to redeploy the Applicant within the Respondent’s enterprise. A defence to this finding would be evidence of attempts to redeploy that came to nothing. No such defence is offered in case.

Conclusion as to genuine redundancy

[73] In all of the circumstances I find that the dismissal was not a case of genuine redundancy. The jurisdictional objection of the Respondent is not made out.

Harsh, unjust or unreasonable

[74] Having found that the dismissal was not a genuine redundancy, it is necessary to determine if the dismissal was harsh, unjust or unreasonable. The criteria for considering harshness is set out in s.387 of the Act and each must be considered.

Was there a valid reason related to the Applicant’s capacity or conduct? (s.387(a))

[75] In Maswan v Escada Textilvertieb t/a ESCADA 15 Watson VP found:

the reason for termination was redundancy consequent upon a restructure of the operations and the merger of two positions. If this restructure had not have occurred there would not have been a termination. This reason cannot reasonably be described as related to Mr Maswan’s capacity or conduct and hence much of the provisions related to such terminations will not be relevant to the fairness of the termination. 16

[76] I respectfully adopt a similar approach to this matter. The reason for the dismissal of the Applicant’s employment relates to a downturn in the business. Neither Mr Rowles nor Mr Koletsis for the Respondent had any complaint in relation to the Applicant’s work. There is nothing before me to suggest that the reason for the termination of the Applicant’s employment related to his capacity or conduct. I therefore find that there was no valid reason for the dismissal relating to the Applicant’s capacity or conduct.

[77] Given this finding there is nothing to take into account with respect to ss.387(b)-(e). The Applicant was not terminated due to capacity or conduct so does not raise issues relevant to a consideration of ss.387(b)-(e). The Respondent considered it a redundancy and made no submission that the termination of the Applicant’s employment was otherwise fair.

The size of the Respondent’s undertaking and the presence of human resource expertise (s.387(f))

[78] Transfield is a large organisation. It is no stranger to negotiating agreements with employees and their representatives. It is reasonable to assume that it is aware of the need to have knowledge of the content of agreements and to apply these agreements accordingly.

[79] The evidence in this case indicates that Transfield has an administrative office in Melbourne where it has industrial relations and, it can be assumed, human resources specialists. Transfield were represented in these proceedings by its industrial relations manager. There is nothing put to me to suggest that the size of the Respondent should impact on the procedures followed in effecting the dismissal of the Applicant nor that there was an absence of dedicated human resources expertise which would impact on the procedures in effecting the dismissal.

Any other matters (s.387(g))

[80] I have found above that the dismissal of the Applicant was not a case of genuine redundancy. I have also found that there was no valid reason for the termination of the Applicant’s employment related to capacity or conduct. This alone, however, does not automatically mean that the dismissal was harsh, unjust or unreasonable. 17

[81] I have, however, had regard to the failure of the Respondent to attempt to source redeployment opportunities for the Applicant. Had it attempted to do so but was unsuccessful I may have reached a different conclusion. I am mindful of the efforts made by Mr Rowles and do not criticise him. Transfield is a large organisation and such efforts should not be left to a local manager and his or her contacts.

[82] Had the only failure of Transfield been that it did not provide the required information to the affected employees in writing (instead of orally as was done) I may have found differently. The scale and the effect of the omission under the consultative provisions of the Agreement is, in my opinion, a relevant consideration in determining if the dismissal was harsh, unjust or unreasonable. The omission with respect to providing advice in writing is not, in the circumstances of this case, a fatal ommission. The total failure to redeploy the Applicant when it was reasonable in my opinion to do so is a major failing of the Respondent.

Conclusion as to harsh, unjust or unreasonable

[83] In all of the circumstances I find that the dismissal of the Applicant was harsh, unjust or unreasonable.

Remedy

[84] The Applicant seeks reinstatement and compensation for lost wages. The Respondent submits that if I reinstate the Applicant I will cause another employee to lose their job.

[85] Section 390 of the Act provides that the Tribunal may order reinstatement of an employee in the following circumstances:

(1) Subject to subsection (3), FWA may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) FWA is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) FWA may make the order only if the person has made an application under section 394.

(3) FWA must not order the payment of compensation to the person unless:

(a) FWA is satisfied that reinstatement of the person is inappropriate; and

(b) FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.

[86] An appropriate application has been made by the Applicant for reinstatement. I have found that the Applicant is protected from unfair dismissal and that he was unfairly dismissed.

[87] Beyond an assertion from the Respondent that if I reinstate the Applicant another employee will lose their job, there is no evidence before me that reinstatement in this case is inappropriate.

[88] The Respondent has, at my request, provided me with some information of current vacancies in Victoria and contracts that the Respondent holds in the Melbourne metropolitan area. On this information I am not convinced that redeployment is not possible. Further, evidence was given and submissions made with respect to work at the Qenos site and other possible shutdowns.

[89] In all of the circumstances I consider reinstatement of the Applicant to be appropriate and will order accordingly.

[90] In making an order for reinstatement s.391 of the Act requires that it must be an order

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

[91] I am mindful, given the circumstances of this case, that the position occupied by the Applicant prior to his dismissal no longer exists. Reinstatement is not as straight forward as it might be in cases not involving redundancy. I shall therefore also order that the location and work provided to the Applicant be subject to discussion between the Applicant, his representative and the Respondent. The Tribunal is available to assist in those discussions if required.

[92] In accordance with s.391(2) of the Act I shall order that the Applicant’s continuity of employment be maintained and that his continuous service with the Respondent be maintained.

[93] The Applicant has also applied to have an order issued restoring lost pay in accordance with s.391(3)-(4) of the Act.

[94] On the basis of the evidence, I am satisfied that the Applicant has been attempting - unsuccessfully - to find work. His evidence is that he has registered with a job agency and is attempting to find work through that process. In the period since his dismissal he was called up for jury duty for one week.

[95] The Applicant has suffered substantial financial hardship since his dismissal.

[96] In all of the circumstances I am satisfied that I should issue an order to restore lost pay. I received no submissions on how much this would be. The order shall therefore require the Applicant, his representative and the Respondent to consult on the amount. The amount should be adjusted for any jury duty payments received and any redundancy payments received from the Respondent.

Conclusion

[97] I have determined and an order shall issue for the Applicant’s reinstatement, for the maintenance of his continuity of employment and continuous service and for the restoration of lost pay. The order shall also require consultation between the Applicant, his representative and the Respondent on where he is to be reinstated to and the amount of lost pay with the outcome of these discussions to be provided to me within 21 days of the decision being issued. The order shall be issued in conjunction with this decision.

COMMISSIONER

Appearances:

R Wainwright of the CFMEU on behalf of the Applicant.

N Koletsis of the Respondent.

Hearing details:

2012
Melbourne:
April 20.

 1   Transcript PN37-39.

 2   Transcript PN86.

 3   Transcript PN182.

 4   Transcript PN187.

 5   Transcript PN259.

 6   Transcript PN195.

 7   Transcript PN202-7.

 8   Transcript PN224.

 9   Transcript PN327-30.

 10   Transcript PN451-4, 457.

 11 (2010) 196 IR 32.

 12 (2010) 196 IR 32, 37.

 13   [2009] FWAA 1416, [4].

 14   See Regulation 2.09 and Schedule 2.3.

 15   [2011] FWA 4239.

 16   [2011] FWA 4239, [29].

 17   See IGA Distribution (Vic) Pty Ltd v Cong Nguyen[2011] FWAFB 4070, [15].

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