David Sharp v Patrick Stevedores Holdings Pty Ltd

[2016] FWC 3522

[2016] FWC 3522

FAIR WORK COMMISSION

DECISION

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

David Sharp
v
Patrick Stevedores Holdings Pty Ltd
(U2015/4967)

COMMISSIONER CAMBRIDGE SYDNEY, 2 JUNE 2016

Application for unfair dismissal remedy - jurisdictional objection - whether dismissal was a case of genuine redundancy - s. 389 meaning of genuine redundancy - reasonable redeployment - jurisdictional objection dismissed - dismissal unjust and unreasonable - reinstatement Ordered.

[1] This matter involves an application for unfair dismissal remedy made under s. 394 of the Fair Work Act 2009 (the Act). The application was lodged at Melbourne on 19 April 2015, and it was made by David Sharp (the applicant). The respondent employer is Patrick Stevedores Holdings Pty Ltd (the employer or Patrick). The applicant has been represented by The Maritime Union of Australia (the MUA) throughout the proceedings.

[2] The application indicated that the date that the applicant’s dismissal took effect was 29 March 2015. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act.

[3] The application in this matter was part of a larger number of applications filed by the MUA, and made under sections 365, 394 and 739 of the Act (the package of applications). The package of applications was taken against Patrick in connection with the termination of employment of numerous individuals, as a consequence of the introduction of an automation process and associated restructuring at the employer’s Port Botany container terminal.

[4] The package of applications was listed for Directions before the Fair Work Commission (the Commission), and the Parties ultimately agreed on a series of timetables for processing the various matters. In respect of the s. 394 matters, the employer raised jurisdictional objections, including that each of the dismissals was alleged to be a case of genuine redundancy. Eight of the unfair dismissal claims were processed together, and were the subject of a Decision 1 of the Fair Work Commission (the Commission) issued on 1 April 2016, which is the subject of an Appeal taken under s. 604 of the Act.

[5] The application in this matter was identified to have particular factual differences which set it apart from the other s. 394 matters that were taken as part of the package of applications. Consequently, the Parties agreed that this application would be heard and determined in its own discrete proceedings. The matter was not resolved at conciliation, and it has proceeded to arbitration before the Commission in a Hearing conducted at Sydney on 11 May 2016.

[6] At the Hearing, the Commission granted permission pursuant to s. 596 of the Act, for Patrick to be represented by lawyers or paid agents. The applicant was represented by Mr A Jacka, MUA legal officer, who called the applicant as the only witness to provide evidence in support of the unfair dismissal claim, and against the jurisdictional objection raised by Patrick. The applicant attested to the veracity of two witness statements that he had made in support of his unfair dismissal claim. Patrick was represented by Mr J Darams, barrister. Mr Darams introduced evidence from two witnesses, Ms L Coppin and Mr T Cheng, both of whom provided witness evidence on behalf of Patrick in elaboration of their respective witness statements.

[7] The jurisdictional challenge to the application involved the assertion by Patrick that the dismissal of the applicant was a case of genuine redundancy, as contemplated by the meaning of genuine redundancy provided for in s. 389 of the Act. In this instance, the argument concerning whether or not the dismissal of the applicant was a case of genuine redundancy, was confined to the operation of subsection 389 (2) of the Act. Specifically, the MUA on behalf of the applicant asserted that it would have been reasonable, in all of the circumstances, for the applicant to have been redeployed within the employer’s enterprise. Patrick contended that it would not have been reasonable to redeploy the applicant.

[8] Patrick advanced its jurisdictional challenge to the application under subsection 385 (d) of the Act. Therefore, the requirements of subsection 396 (d) of the Act became relevant. Subsection 396 (d) of the Act relevantly stipulates that the Commission must decide whether the dismissal was a case of genuine redundancy, before there could be any consideration as to whether the dismissal was harsh, unjust or unreasonable.

Background

[9] The relevant factual background surrounding Patrick’s Port Botany container terminal redevelopment, and the introduction of automation is set out in various Decisions of the Commission, including that of Sams DP issued on 22 April 2014 2. The applicant was one of more than 160 employees made redundant on 29 March 2015, as a consequence of the introduction of automation and the associated restructuring of the terminal operations.

[10] The particular circumstances of the applicant initially followed the general approach adopted by Patrick in order to select employees who would be made redundant, or redeployed to alternative positions, as a consequence of the introduction of the automation technology and the associated restructuring of the terminal operations (the selection process). The applicant was a Straddle Driver, which was one of the particular positions which would clearly become redundant with the introduction of automation technology.

[11] As part of the selection process, in November 2014, the applicant completed a role preference form, 3 on which he indicated that his first preference was to be redeployed as a Teleops Operator, his second preference was to be redeployed as a First Aid/Bus Driver, and his third preference was to be redeployed as a PIR (Permanent Irregular Roster stevedore). The applicant indicated that he had no preference for voluntary redundancy.

[12] As the selection process was duly undertaken, the applicant was firstly ruled out of any opportunity for the First Aid/Bus Driver Role because none of the incumbents in those positions opted for voluntary redundancy. Secondly, in respect to the applicant’s first preference of Teleops Operator, the selection process resulted in the applicant being ranked at 132 for the 13 Teleops positions. Consequently, the applicant was effectively ruled out of any prospect to be redeployed in either his first preference as a Teleops Operator, or in his second preference as a First Aid/Bus Driver.

[13] Initially, the applicant was also unsuccessful in achieving a ranking which enabled his selection for redeployment to his third preference in a PIR position. Patrick initially sought to fill 104 PIR positions, and the applicant was ranked at 110. Patrick reassessed the number of PIR positions that it sought to fill, and it reduced the number to 91. During February and March of 2015, a number of employees who were ranked above the applicant in the list to fill the PIR positions, decided to take voluntary redundancies. As each of these employees took a voluntary redundancy, those employees ranked beneath them, such as the applicant, moved up in the ranking order. The applicant’s ranking moved firstly from 110 to 95, and then eventually to 90, putting him into the first 91 ranked employees to be selected for PIR positions.

[14] On 10 March 2015, the applicant had discovered that his ranking had moved up to position 90, which meant that he now satisfied the requirement for selection into the 91 PIR positions. The applicant telephoned one of Patrick’s HR managers and advised of his discovery regarding his belief that he had “made the cut” for selection into a PIR position. Shortly after this telephone conversation, another of Patrick’s HR managers telephoned the applicant and told him that he was no longer required to attend work, and he could remain at home on “gardening leave” up until the date of the actual commencement of automated operations (cutover) on 29 March 2015.

[15] On 11 March 2015, Patrick provided the MUA with a document which confirmed the identification of the ranking of employees for PIR positions, and this document showed the applicant ranked at 90 for the 91 positions. The applicant was confused as to why he had been placed on “gardening leave” when he had achieved a ranking for selection into a PIR position. The applicant contacted a relevant official of the MUA, and he sought assistance regarding the apparent confusion surrounding his redeployment into a PIR position. The MUA subsequently filed a grievance notice on behalf of the applicant.

[16] Relevant HR managers of Patrick commenced to process the “voluntary” redundancy of the applicant, including providing him with written advice about details of the basis upon which his termination payments were to be calculated. The applicant telephoned the relevant HR managers, and he requested that he be provided with a meeting to discuss his circumstances.

[17] On 27 March 2015, the applicant was accompanied by an MUA delegate when he met with relevant Patrick HR managers. During this meeting, the applicant clarified that he was not seeking voluntary redundancy despite at least one of the HR managers apparently believing that to have been the case. The relevant HR manager believed that the applicant may have previously indicated his agreement for voluntary redundancy, and that the applicant may have changed his mind. At this point, Patrick had proceeded on the belief that the applicant was seeking voluntary redundancy, and it had removed him from the number 90 position on the PIR rankings. The applicant protested, and reiterated that he was not seeking voluntary redundancy, and as he had made the “cut off” for the 91 PIR positions, he should not be made redundant but instead redeployed into a PIR position.

[18] At this time, 27 March, Patrick had finalised the provisional offers of redeployment to, inter alia, the 91 individuals selected for PIR positions, and the applicant had been excluded because Patrick had processed his “voluntary” redundancy. Despite what may have been a misunderstanding about the applicant’s intentions and desires, it became clear that he was not accepting a voluntary redundancy. The relevant Patrick HR manager decided that the dilemma regarding the applicant’s circumstances which had unequivocally materialised during the meeting on 27 March, should be dealt with through the grievance process. The grievance process was directly linked to the provisional nature of the offers of redeployment, such that, a successful grievance outcome could potentially involve the retraction of a provisional offer of redeployment.

[19] On about 31 March 2015, the applicant received formal written notification of the termination of his employment on the basis of redundancy. The applicant was paid all accrued entitlements, including notice and severance payments, in respect to redundancy.

[20] On 7 April 2015, the applicant’s grievance was the subject of a meeting that he attended together with an MUA official and relevant Patrick HR managers. The record of the grievance meeting confirmed that the applicant complained that his ranking should have meant that he was included for selection into a PIR position, and that he had not applied for a voluntary redundancy.

[21] On 13 April 2015, Patrick sent the applicant a letter which advised that his grievance application had been unsuccessful. The letter provided no explanation for the reasons that the grievance had been rejected, but instead indicated that the applicant could lodge an appeal within seven days.

[22] On 27 April 2015, the MUA lodged an appeal on behalf of the applicant. However, as this appeal was lodged outside of the seven day time limit, it was rejected by Patrick. Consequently, the internal processes by which the applicant sought to agitate his complaint had been exhausted.

[23] The MUA, on behalf of the applicant, has pursued the claim for unfair dismissal remedy, which has been challenged by Patrick on the basis that the dismissal of the applicant was a case of genuine redundancy.

The Case for the Applicant

[24] Although this matter has involved a preliminary jurisdictional objection raised by the respondent employer, the MUA, on behalf of the applicant, presented its case in respect to both the jurisdictional objection and the broader merits issues, which was then followed by the case presented by Patrick in respect to both the jurisdictional objection, and any broader merits questions.

[25] Mr Jacka from the MUA appeared for the applicant, and he referred to two written outline of submissions documents, which he supplemented with further oral submissions.

[26] In respect to the jurisdictional objection raised by Patrick, Mr Jacka submitted that the dismissal of the applicant was not a case of genuine redundancy. Mr Jacka referred to the meaning of genuine redundancy contained in s. 389 of the Act, and he acknowledged that there was no issue in respect to the requirements of subsection 389 (1) having been satisfied. Therefore, the applicant accepted that his previous position as a Straddle Driver was no longer required because of the changes in the operational requirements of the employer’s enterprise, and that the employer had complied with relevant enterprise agreement consultation obligations.

[27] However, the submissions made by Mr Jacka asserted that subsection 389 (2) of the Act operated to render the dismissal of the applicant to not be a case of genuine redundancy. Mr Jacka said that it would have been reasonable in all of the circumstances, for the applicant to be redeployed to the PIR position for which he had achieved a ranking above the cut-off. Mr Jacka stressed that the applicant did not challenge the selection process or the score that ultimately provided for his ranking. Consequently, Mr Jacka rejected any suggestion that the case for the applicant involved a challenge to the selection process that the employer used for determining which of its employees would become redundant.

[28] Mr Jacka referred to a number of Full Bench Decisions of the Commission which had examined the approach to subsection 389 (2) of the Act. Mr Jacka quoted from paragraph 29 of the Full Bench Decision in Ulan Coal Mines v Honeysett 4(Honeysett) and paragraph 36 of the Full Bench Decision in TAFE New South Wales v Pykett5(Pykett),and he said that there was another available position for which the applicant was suitably qualified and skilled, and which, in all the circumstances, should have been offered to the applicant. Therefore, Mr Jacka submitted that the dismissal of the applicant was not a case of genuine redundancy, and the jurisdictional objection raised by Patrick should be rejected.

[29] Mr Jacka made further submissions regarding the question of whether the dismissal of the applicant was harsh, unjust or unreasonable. Mr Jacka referred to the various matters set out in s. 387 of the Act. Mr Jacka submitted that, notwithstanding Patrick’s jurisdictional objection, there was no valid reason to dismiss the applicant. Mr Jacka acknowledged that the applicant had been notified of the reasons for his dismissal by way of letter dated 31 March 2015. Further, Mr Jacka submitted that it was relevant to consider the circumstances of the applicant, whereby Patrick had refused to redeploy him in accordance with its own established processes.

[30] The submissions made by Mr Jacka recounted in detail the events which led to Patrick treating the applicant as if he had agreed to be made voluntarily redundant, when clearly by at least 27 March 2015, there was no doubt that the applicant did not accept a voluntary redundancy, and there was no written confirmation that the applicant may have previously agreed to accepting a voluntary redundancy. Mr Jacka submitted that Patrick had not provided evidence from the particular HR manager (Mr O’Leary), who had allegedly spoken to the applicant and obtained his verbal acceptance for voluntary redundancy. Therefore, according to the submissions made by Mr Jacka, there was no evidence upon which the Commission could conclude that the actions of the applicant contributed to the apparent misunderstanding, dispute or error, whereby Patrick proceeded on the erroneous basis that the applicant had agreed to take a voluntary redundancy.

[31] Mr Jacka concluded his submissions by reiterating that the dismissal of the applicant was not a case of genuine redundancy, because the circumstances satisfied the provisions of subsection 389 (2) of the Act. Further, Mr Jacka submitted that the dismissal of the applicant was unfair because there was no valid reason for the dismissal, and that as a long-term employee with an unblemished employment history, the applicant was entitled to be treated fairly, and the evidence had demonstrated that the particular circumstances of the dismissal of the applicant rendered the dismissal to be harsh, unjust and unreasonable.

[32] Mr Jacka submitted that the applicant earnestly sought a remedy of reinstatement. Further, Mr Jacka said that, as there was no issue raised in terms of any loss of trust and confidence in the employment relationship, reinstatement of the applicant was the appropriate and primary remedy that was available. In this regard, Mr Jacka submitted that the Commission should find that the applicant had been unfairly dismissed, and Order that he be reinstated into the role of a PIR.

The Case for Patrick

[33] Mr Daramswho appeared for Patrick, made oral submissions in support of written material which had been filed on behalf of Patrick. Mr Darams submitted that the applicant did not have standing to make an unfair dismissal claim because his dismissal was a case of genuine redundancy.

[34] Mr Darams submitted that the salient aspect of the jurisdictional challenge centred upon subsection 389 (2) of the Act. Mr Darams said that as at the date of the applicant’s dismissal, it would not have been reasonable to redeploy him because at that time, 29 March 2015, the applicant had indicated that he was only interested in redeployment to positions that might have existed at the employer’s Port Botany terminal. Further, according to the submissions of Mr Darams, as at 29 March 2015, there were no vacant positions at the terminal into which the applicant could have been redeployed.

[35] Mr Darams made further submissions which examined in detail the approach that had been established by virtue of the authorities of the Full Bench Decisions in Honeysett and Pykett. Mr Darams said that the question of reasonable redeployment involved a two prong test. This test, he said, firstly involved a determination as to whether at the time of dismissal there was a position vacant, and secondly, whether it would have been reasonable to redeploy into that position at that time.

[36] According to the submissions of Mr Darams, at the time of the applicant’s dismissal, there was no other vacant position available because the PIR roles had been provisionally filled at that stage. Mr Darams submitted that the consideration of suitable redeployment opportunities was limited to the circumstances which existed on 29 March 2015, and at that point in time, Patrick had advised all of the employees who were redeployed into PIR roles. Therefore, according to Mr Darams, at that point in time, 29 March 2015, there was no position available into which the applicant could have been redeployed.

[37] It was further submitted by Mr Darams that it would not have been reasonable for Patrick, as of 27 March, when the particular circumstances involving the applicant had been identified, to have withdrawn the offer of redeployment into a PIR position from another employee, and then, in effect, offer that position to the applicant. Mr Darams submitted that consideration of the particular circumstances of the applicant did not establish that it would have been reasonable for the applicant to have been redeployed, and consequently his dismissal was a case of genuine redundancy.

[38] Mr Darams also made detailed submissions about the circumstances which gave rise to the apparent misunderstanding concerning the applicant accepting a voluntary redundancy. Mr Darams rejected the assertions made by the MUA, that the Commission should draw an adverse inference from the absence of any direct evidence from Mr O’Leary, or other particular HR managers. In this regard, Mr Darams stressed that it was open to both Parties to call any of these particular individuals to provide evidence.

[39] Mr Darams summarised his submissions regarding the jurisdictional objection raised by Patrick, by reiterating that all of the requirements of s. 389 of the Act had been satisfied in respect to the dismissal of the applicant. Mr Darams stressed that at the time of the dismissal of the applicant on 29 March 2015, it would not have been reasonable, in all of the circumstances, for the applicant to be redeployed, and therefore his dismissal was a case of genuine redundancy.

[40] Mr Darams made further submissions which addressed the prospect that if the Commission found against Patrick in respect to its jurisdictional objection, then the dismissal of the applicant was not unfair, having regard for the criteria set out in s. 387 of the Act. It was submitted by Mr Darams that the matter of valid reason was not applicable in this instance, because subsection 387 (a) of the Act was qualified by reason in respect to capacity or conduct of an individual. In circumstances of redundancy, the question of valid reason was, according to Mr Darams, a neutral factor.

[41] In respect to any other matters relating to the dismissal of the applicant which might arise via subsection 387 (h) of the Act, Mr Darams submitted that Patrick had a genuine belief based on reasonable grounds, that the applicant wished to take a voluntary redundancy, and by 27 March 2015, when it appeared that the applicant may have changed his mind about wanting a voluntary redundancy, the employer had ascertained that there were no alternative roles available at that particular time. Therefore, Patrick was of the view that the dismissal of the applicant was not unfair as it was clearly for legitimate operational reasons, and it was made in accordance with its genuinely held belief that the applicant had agreed to voluntary redundancy.

[42] In summary,Mr Darams submitted that the dismissal of the applicant was a case of genuine redundancy because each of the requirements which provide for the meaning of genuine redundancy contained in s. 389 of the Act had been satisfied. Specifically, Mr Darams submitted that in respect to the contentious issue regarding subsection 389 (2) of the Act, it would not have been reasonable in all the circumstances, for the applicant to have been redeployed. Consequently,Mr Darams said that the application for unfair dismissal remedy was without jurisdictional foundation and should be dismissed.

[43] Alternatively, Mr Darams submitted that the dismissal of the applicant was not harsh, unjust or unreasonable. Mr Darams said that the dismissal of the applicant was not unfair because it was for clear operational reasons, and it involved the applicant being paid a redundancy benefit, and all other entitlements. Mr Darams urged that the application for unfair dismissal remedy be dismissed.

Consideration

[44] This application for unfair dismissal remedy was one of numerous challenges made by the MUA, arising from the termination of employment of more than 160 employees who were engaged at the Patrick Port Botany container terminal. The context for the consideration of this application should be appropriately referenced to the circumstances which have been examined in some detail, in various Decisions of this Commission including two other relevant, recent Decisions of the Commission as currently constituted, namely, McCarthy and Ors v Patrick 6 (McCarthy) and Duggan and Ors v Patrick7(Duggan).

[45] As with the other unfair dismissal claims which were dealt with in the Decision in McCarthy, Patrick raised jurisdictional objection on the basis that the dismissal of the applicant was a case of genuine redundancy. Consequently, the question of whether the dismissal of the applicant was a case of genuine redundancy is a matter which s. 396 of the Act requires the Commission to decide before any consideration of the merits of the application could be undertaken. The relevant provisions of s. 396 of the Act are:

“396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) ...

...

(d) whether the dismissal was a case of genuine redundancy.”

Genuine Redundancy - s. 389 of the Act

[46] A dismissal that is a case of genuine redundancy could not be an unfair dismissal. Such is the effect of the operation of subsection 385 (d) of the Act. Section 385 is in the following terms:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC 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.”

[47] Section 389 of the Act provides for a meaning 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.”

[48] An examination of the provisions of s. 389 of the Act identifies three specific elements which, if satisfied in combination, determine whether or not a dismissal was a case of genuine redundancy. Subsection 389 (1) contains two affirmative elements, both of which must be established, in order to allow for a finding that a dismissal was a case of genuine redundancy, and subsection 389 (2) contains one negatory element which, if established, renders the dismissal not to be a case of genuine redundancy.

[49] In this instance, the contest as to whether the dismissal of the applicant was a genuine redundancy was confined to the operation of subsection 389 (2) of the Act. There was no dispute that the applicant’s job as a Straddle Driver was no longer required to be performed by anyone because of changes in the operational requirements of the employer’s enterprise. Further, there was also no dispute that Patrick had complied with its obligations to consult under the relevant enterprise agreement. The contested issue was whether or not, in all the circumstances, it would have been reasonable for Patrick to have redeployed the applicant within the employer’s enterprise.

Reasonable Redeployment

[50] Subsection 389 (2) of the Act is a provision which renders what may have otherwise been a genuine redundancy, which possessed the elements of subsection 389 (1), to not be a case of genuine redundancy, if redeployment was reasonable in all the circumstances. The subsection contemplates redeployment to extend to any associated entities of the employer. However, in this case the contested redeployment involved the position of a PIR stevedore at the Port Botany terminal.

[51] In this instance, it was asserted that it would have been reasonable for the applicant to have been redeployed into the position of a PIR stevedore. Patrick has contended that it would not have been reasonable for the applicant to have been redeployed into the position of a PIR stevedore because at the time of the dismissal, 29 March 2015, the 91 PIR stevedore positions had been filled.

[52] The evidence established that the applicant had the requisite qualifications, skills and experience to perform the PIR position. Indeed, the applicant had satisfied the particular selection procedure that Patrick had applied as the basis upon which redeployment would be offered. The applicant had moved up the selection ranking to the position of 90, and he would have been redeployed into one of the 91 PIR positions, had it not been for the misunderstanding that arose about his acceptance of voluntary redundancy.

[53] There was some conflict in the evidence as to how the misunderstanding about the applicant’s apparent acceptance of voluntary redundancy arose. However, whatever the underlying cause of that misunderstanding may have been, Patrick was clearly disavowed of any belief that it could have had as to the consent of the applicant in respect to redundancy, during the meeting that was held on 27 March 2015.

[54] It was regrettable that clarification of this position of the applicant did not occur until a late stage in the complex process that surrounded the arrangements made in preparation for cutover on 29 March 2015. Further, it was clear that Patrick had no documentary consent from the applicant to be made redundant. Nor did it have any other proper foundation upon which it could proceed as if it had capacity to act on the basis of the implied, or previously obtained, consent of the applicant to be made redundant.

[55] It appeared that because the dilemma regarding the clarification of the applicant’s rejection of voluntary redundancy presented as something of a crisis within hours of the close of business on the last working day before cutover, it was decided that, rather than reinstate the applicant back into PIR position 90, and make the consequent alteration to the particular individual who had been (wrongly) advised of redeployment to a PIR position, Patrick proceeded as if it had secured the consent of the applicant when it knew it did not. The decision of Patrick to proceed in this manner was bolstered by the provisional nature of all of the offers of redeployment. The offers of provisional redeployment were subject to the potential outcome of the grievance procedure process. Consequently, on 27 March 2015, Patrick proceeded to make the applicant redundant against his expressed desire, on the basis that he might obtain rectification of his particular position via the grievance procedure.

[56] Unfortunately, Patrick rejected the applicant’s grievance, and there were no reasons given to the applicant at the time for this rejection. Further, there was no evidence presented to the Commission, as to what the reason or reasons were for the rejection of the applicant’s grievance. The grievance process suffered from the number of matters that required processing within a short time frame following the implementation of the redundancies. The grievances were made in batches of bulk template grievance notices sent to Patrick by the MUA. Patrick appeared to deal with the grievances in something of a perfunctory manner that was responsive to the template nature of the initiating procedure, whereby pro-forma outcome advice documentation was provided. Regrettably, I have concluded that the “mass processing” of the grievances meant that the particular circumstances of the applicant were not properly considered.

[57] Consequently, when all of the circumstances surrounding the position of the applicant are properly considered, a determination must be made as to whether it would have been reasonable for the applicant to have been redeployed into a PIR position. Firstly, it was clear that the applicant was suitably qualified and had met the employer’s own stipulated requirements for redeployment, by virtue of his inclusion into the “first” ranked 91 PIR positions.

[58] Secondly, the evidence has established that there was a PIR position available into which the applicant could have been reasonably redeployed. The availability of a PIR position was, in this instance, unequivocally confirmed because of the provisional nature of all of the offers of redeployment. The proposition that Patrick sought to advance whereby, because those individuals who had been advised of their inclusion in the “first” 91 PIR positions as at 29 March 2015, meant that the positions were filled, and therefore there was no available position to which the applicant could be redeployed, ignored the provisional nature of all of the offers of redeployment. The provisional appointment arrangements were specifically adopted as a means to address the very circumstances that arose for the applicant. There was clearly a position to which the applicant could be redeployed, because the offers made to all of the individuals who were included in the “first” 91 PIR positions included the qualification that such redeployment opportunity could be reversed, if it was found that a person had been wrongly excluded from the “first” 91 PIR positions.

[59] In the particular circumstances of this case, my consideration has led me to conclude that the requirements which have been established to arise from subsection 389 (2) of the Act, as confirmed in the Full Bench Decisions in Honeysettand Pykett, have been satisfied. That is, it would have been reasonable in all the circumstances, for the applicant to have been redeployed within the employer’s enterprise into a PIR position. It follows that the dismissal of the applicant was not a case of genuine redundancy.

Harsh, Unjust or Unreasonable

[60] The dismissal of the applicant was not a case of genuine redundancy. Therefore, the remaining contested element of s. 385 of the Act, namely, whether the dismissal was harsh, unjust or unreasonable, has required consideration.

[61] Section 387 of the Act contains criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. These criteria are:

(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 reason; 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.

387 (a) - Valid reason for the dismissal related to capacity or conduct

[62] The reason for the applicant’s dismissal was redundancy due to the introduction of automation and the associated restructuring of the terminal operations. This reason for dismissal does not relate to the capacity or conduct of the applicant.

[63] In this instance, I have been prepared to treat this factor as neutral or simply not applicable to the circumstances of the case.

387 (b) - Notification of reason for dismissal

[64] The employer provided written notification of the reason for the applicant’s dismissal in a letter dated 31 March 2015.

387 (c) - Opportunity to respond to any reason related to capacity or conduct

[65] This factor is not relevant to the circumstances under consideration in this instance.

387 (d) - Unreasonable refusal to allow a support person to assist

[66] This factor is not relevant to the circumstances under consideration in this instance.

387 (e) - Warning about unsatisfactory performance

[67] This factor is not relevant to the circumstances under consideration in this instance.

387 (f) - Size of enterprise likely to impact on procedures

[68] This factor is not relevant to the circumstances under consideration in this instance.

387 (g) - Absence of management specialists or expertise likely to impact on procedures

[69] This factor is not relevant to the circumstances under consideration in this instance.

387 (h) - Other relevant matters

[70] The dismissal of the applicant arose as a direct consequence of the failure by Patrick to adhere to its established policies and procedures, which were promulgated to deal with the redundancies caused by the introduction of automation and the associated restructuring of the terminal operations. These circumstances should be considered in the context of the protracted and difficult history of the restructuring of the Patrick Port Botany container terminal. The difficult and complex process by which Patrick determined which of its employees would be dismissed on the basis of redundancy, has been scrutinised by the Commission on numerous occasions, and it has generally been recognised as a transparent and objectively fair system. Regrettably, in the particular circumstances of the applicant’s case, Patrick has not followed its established process and as a consequence, the dismissal of the applicant was invoked in contravention of the employer’s established procedures.

[71] In simple terms, it would be demonstrably unfair if Patrick could rely upon the legitimacy of the system that it adopted for dealing with the introduction of automation and associated restructuring, and then when it failed to apply that system, somehow be immune from any consequences of such mistake. Upon any objective contemplation, it was unreasonable for Patrick to proceed to invoke a “voluntary” redundancy once it had been clearly established that there was no voluntariness on the part of the applicant.

[72] Although it may have been understandable, that as an expedient decision taken on 27 March 2015, Patrick dealt with the dilemma that the applicant’s circumstances presented by inviting its referral to the grievance procedure, such decision represented an abrogation of its responsibilities to apply its own promulgated process. Regrettably, the grievance procedure failed to provide any proper or just consideration of the matter. The rejection of the applicant’s grievance without any reason provided at the time, or subsequently discovered, represents the perpetration of a manifest injustice upon the applicant.

Conclusion

[73] This Decision has initially involved determination of a jurisdictional objection raised by the employer in response to the application for unfair dismissal remedy. The jurisdictional objection has been advanced on the basis that the dismissal of the applicant was a case of genuine redundancy.

[74] The determination of the jurisdictional objection has focused upon the meaning of genuine redundancy as contained in s. 389 of the Act. In particular, that aspect of the meaning of genuine redundancy contained in subsection 389 (2) of the Act, regarding whether reasonable redeployment was available, has been the subject of significant contest.

[75] Upon analysis, I have determined that the negatory element contained in subsection 389 (2) of the Act which deals with reasonable redeployment, was established, such that, it would have been reasonable, in all the circumstances, for the applicant to have been redeployed to a PIR position. Therefore, the dismissal of the applicant was not a case of genuine redundancy. The jurisdictional objection raised by the employer is dismissed accordingly.

[76] Further consideration of the circumstances involving the dismissal of the applicant has established that the dismissal was made in contravention of the employer’s established policy and procedures, and as such was unreasonable. Further, the process by which the applicant’s complaint was dealt with by the employer was unjust because no reason was provided for the rejection of the applicant’s grievance.

[77] Consequently, the dismissal of the applicant was not a case of genuine redundancy and it was unreasonable and unjust. Consideration must therefore turn to the question of appropriate remedy for the unfair dismissal of the applicant.

Remedy

[78] The applicant has sought reinstatement as remedy for his unfair dismissal.

[79] The question of remedy in respect of an unfair dismissal is the subject of Division 4 of Part 3-2 (ss. 390 - 393) of the Act. Section 390 is immediately relevant to the consideration in this instance, and is in the following terms:

“390 When the FWC may order remedy for unfair dismissal

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

(a) the FWC 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) The FWC may make the order only if the person has made an application under section 394.

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

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

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

[80] I have carefully considered whether it would be appropriate to make Orders for the reinstatement of the applicant. It is well established that reinstatement is the primary remedy for unfair dismissal.

[81] There are various factors which, in the circumstances of this case, operate to strongly support reinstatement. Firstly, the failure of the employer to redeploy the applicant to a PIR position was a central feature of the unfair dismissal. Secondly, because of the provisional nature of the redeployment, there is no impediment to reinstatement involving appointment to a PIR position. Thirdly, there was no evidence of any deterioration in the employment relationship. Fourthly, the applicant was a long-standing employee with an apparently unblemished work record. Fifthly, because of the difficult history of disputation surrounding the redundancies in this particular workplace, what might be described as industrial justice would be served and recognised by the applicant’s return to work at the terminal.

[82] Against these factors which support reinstatement, I recognise the employer’s understandable resistance to reinstatement, and further, the prospect that another employee who had been offered and accepted redeployment, may have that position removed. However, the provisional nature of the redeployment offers was something that was clearly understood by the Parties and these circumstances were predicable.

[83] I have decided that reinstatement of the applicant would be appropriate, and that consequential Orders for maintenance of continuity of employment, and restoration of lost pay should also be made. The Orders also require a reduction from the amount calculated to represent lost pay, of any amount paid to the applicant as a redundancy entitlement.

[84] Orders providing for the reinstatement of the applicant will be issued separately.
[85] In the event that the Parties are unable to agree on the amount to be paid to the applicant in accordance with Order 3, regarding an Order to restore lost pay, the matter will be listed for further proceedings to enable the Commission to determine that amount. Any request for such further proceedings should be made within 21 days from the date of this Decision.

COMMISSIONER

Appearances:

Mr A Jacka of The Maritime Union of Australia appeared for the applicant.

Mr J Darams of Counsel with Mr M Stokes ofSeyfarth Shaw Australiaappeared for the employer.

Hearing details:

2016.

Sydney:

May, 11.

 1   McCarthy and Ors v Patrick Stevedores Holdings Pty Ltd [2016] FWC 2039.

 2   Maritime Union of Australia v Patrick Stevedores Holdings Pty Ltd [2014] FWC 2651.

 3   Exhibit 6 – Annexure “LC-1”.

 4   Ulan Coal Mines Limited v A. Honeysett and Ors and R. Murray and Ors v Ulan Coal Mines Limited [2010] FWAFB 7578.

 5   Technical and Further Education Commission (t/as TAFE NSW) v Pykett [2014] FWCFB 714.

 6   McCarthy and Ors v Patrick Stevedores Holdings Pty Ltd [2016] FWC 2039.

 7   John Duggan and Ors v Patrick Stevedores Holdings Pty Limited [2016] FWC 2335

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