F Guerra v Speedie Waste T/A Speedie Waste Pty Ltd

[2014] FWC 8940

[2014] FWC 8940

FAIR WORK COMMISSION

DECISION

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

F Guerra
v
Speedie Waste T/A Speedie Waste Pty Ltd
(U2014/7291)

SENIOR DEPUTY PRESIDENT WATSON MELBOURNE, 11 DECEMBER 2014

Application for relief from unfair dismissal – application dismissed.

[1] On 15 May 2014 Mr F Guerra (the Applicant) applied, pursuant to s.394 of the Fair Work Act 2009 (the Act) for relief in respect of the termination of his employment by Speedie Waste T/A Speedie Waste Pty Ltd (the Respondent) on 24 April 2014.

[2] On 24 July 2014, the Respondent filed a jurisdictional objection (Form F4) to the application on the basis that the dismissal was a case of genuine redundancy and, as a result, the applicant was not unfairly dismissed (s.385(d) of the Act).

[3] On 18 August 2014, the matter was listed for Jurisdiction (Genuine Redundancy) and Arbitration Conference/Hearing for 22–24 October 2014. On 1 October 2014 the listing was altered to a listing for one day – 24 October 2014. On 22 October 2014, the Conference/Hearing was adjourned until 4 and 5 December 2014, consequent upon an application for an adjournment by the Applicant in light of the cessation of his legal representation on 22 October 2014.

[4] A further adjournment application by the Applicant, was received by email on the morning of the 4 December 2014 hearing, at 2.09 a.m.

[5] At 8.14 am, I responded indicating that I was not prepared to adjourn the hearing, without affording the Respondent an opportunity to be heard, unless advised by the Respondent prior to the hearing of the consent to the adjournment request. I further advised that, in the absence of consent between the Applicant and the Respondent as to an adjournment, the adjournment application would be dealt with at the commencement of the Conference/Hearing on 4 December 2014, if pressed by the Applicant. I concluded by stating:

“In short, the Conference/Hearing for Jurisdiction and Arbitration in relation to your application will proceed at 10am this morning, unless I am advised prior to the hearing of consent between you and the Respondent for an adjournment.”

[6] The Applicant was not in attendance at the Conference/Hearing on 4 December 2014. The commencement of the Conference/Hearing on 4 December 2014 was delayed whilst attempts were made by my Associate to contact the Applicant by telephone. No contact was established and the Conference/Hearing commenced at 10.37 a.m.

[7] The further application for an adjournment made in the 2.09 a.m., email of the Applicant on the morning of the hearing was refused on the basis that the Applicant had ample opportunity to submit materials and prepare for the Conference/Hearing commencing on 4 December 2014, following the adjournment, at the Applicant’s request, of the October 2014 date:

“I confirm my decision not to adjourn the matter. I do so on the basis of following the adjournment of the October hearing at the request of the applicant, he has had a period of six weeks in which he could prepare for the case. His representative withdrew shortly before or ceased to act on 20 October, so he was aware of that circumstance from that time and Mr Guerra was in possession of the materials of the respondent since their filing on 17 October and in those circumstances I am satisfied that Mr Guerra had adequate opportunity to prepare his case, provide further materials he was directed to provide and required to provide an answer to an order to produce and that there is no proper basis for adjourning the matter having regard to the ability of Mr Guerra to prepare for the hearing.

Matters of this kind must come to finality for the benefit of the applicant and equally for the benefit of the respondent to achieving some finality one way or the other in relation to the application and equally for the efficient conduct of business by the commission. Accordingly I intend to proceed today to hear whatever submissions you wish to put, Mr D’Abaco, for the respondent and unless some unforeseen circumstance arises which would mean that it was unfair to proceed on that basis, for example if there was some circumstance that I’m unaware of that Mr Guerra, for example was significantly adversely affected by the earthquake somewhere this morning, obviously if those sorts of circumstance arose I would review that position, but otherwise I would determine the matter on the basis of what is put to me today.” 1

[8] In the hearing on 4 December 2014, the Respondent argued that the application should be summarily dismissed given the failure of the Applicant to attend to and make good his case 2 or be dismissed having regard to the evidence – the Respondent’s evidence tendered on 4 December 2014 – and submissions before the Fair Work Commission (the Commission). The Respondent also made a costs application against the Applicant in respect of costs “thrown away” by the Respondent, in preparing for the Conference/Hearing on 4 December 2014 and obtaining representation for it.3

[9] I admitted the evidence of the Respondent and heard its further submissions on the jurisdictional objection and the substantive application and indicated that I would decide those matters, subject to contacting the Applicant and seeking from him an explanation of his failure to attend the Conference/Hearing and providing him with an opportunity to respond to the Respondent’s cost application. I heard the jurisdictional objection of the Respondent and considered the Applicant’s application seeking a finding that the dismissal was unfair, on the basis of the evidence tendered in the hearing, subject to affording the Applicant with an opportunity to persuade me that there was an acceptable explanation for his failure to attend at the hearing, in which case I would not proceed to hear and determine the matter on the basis indicated. In that respect, I decided:

“I will have my associate ascertain from Mr Guerra if there are any reasons why I should not determine the matter on the basis of what I have heard today and material before me today and that will be explained as to what that is. If I am not satisfied there is any good reason for not so proceeding then I will determine the matters. Obviously if I am of a view that there are, is a good reason for not proceeding on that basis then the respondent will be given an opportunity to respond to anything Mr Guerra puts before I make a decision in relation to that matter. And then if upon making that decision if I proceed to determine the matter as is - as will occur unless there is some compelling reason not to do so on the material before me, I will do that and issue a decision. I will have transcript produced as a matter of priority and also indicate to Mr Guerra that a costs application has been made under section 402 and provide him with the transcript in relation to that application and exhibit SW7 which you rely on in respect to it.” 4

[10] On 5 December 2014, I corresponded in writing with the applicant:

● providing him with an opportunity to explain, by written submission, his failure to attend the Conference/Hearing on 4 December 2014 – by Friday, 12 December 2014; and

● providing him with an opportunity to put submissions in relation to the Respondent’s application of a costs order against him – by Friday, 19 December 2014.

[11] The Applicant responded at 5.58 p.m. on 7 December 2014 in relation to his failure to attend the Conference/Hearing on 4 December 2014. The reason advanced by the Applicant for his failure to attend the Conference/Hearing of 4 December 2014 was the late notice on 28 November 2014 that his barrister was unable to represent him, due to the Applicant’s inability to make a required payment to the barrister, leaving the Applicant in a position of having to represent himself, confusion on his part as to the Respondent’s jurisdictional application and the hearing process. The Applicant also indicated that due to financial circumstances, he had moved residence on several occasions between the time of his dismissal and the hearing of 4 December 2014 and did not consistently have internet access over that period, resulting in communication difficulties. The Applicant otherwise rehearsed his argument as to why he had been unfairly dismissed.

[12] I am not persuaded that the Applicant has provided any basis for departing from the approach indicated by me on 4 December 2014 of admitting the evidence of the Respondent and to hear its further submissions on the jurisdictional objection and the substantive application and to decide those matters on the evidence admitted on 4 December 2014 and the submissions of the parties, as previously filed and as put by the Respondent on 4 December 2014.

CONSIDERATION OF JURISDICTIONAL APPLICATION

[13] I am not persuaded that the application should be summarily dismissed on the basis of the failure of the Applicant to persecute his case on 4 December 2014. Rather, I have decided to determine the jurisdictional objection and, if necessary, the substantive application on the basis of the evidence and the submissions before me.

Genuine Redundancy (s.389 of the Act)

[14] I am required by s.396(d) of the Act, to determine whether the dismissal was a case of genuine redundancybefore considering the merits of the application.

[15] I find that the termination was not a genuine redundancy within the meaning of s.389 of the Act. I am satisfied that the Respondent no longer required the Applicant’s job to be performed by anyone because of changes in its operational requirements. I am not satisfied, however, that the Respondent complied with its obligation under clause 8.1 of the Waste Management Award 2010 [MA000043] (the Award) to consult about the redundancy. In my view, the 23 April 2014 advice and the 24 April 2014 meeting involved advice of operational change decided by the Respondent, the redundancy and, on 24 April 2014, advice of the termination of employment. It did not constitute a discussion of the changes, but advice of them, and the requirement to provide written information in clause 8.1(d)(iii) of the Award was not met. Although, I do not believe that the meeting of the consultation requirements would have altered the outcome, I am not satisfied as to the Respondent’s compliance with clause 8.1 of the Award. I find that the dismissal was not a case of genuine redundancy.

Unfairly dismissed (s.385 of the Act)

[16] I find that the Respondent did not comply with its obligation under clause 8.1 of the Award to consult the Applicant about the redundancy. The dismissal was not a case of genuine redundancy.

[17] It is therefore necessary to consider and determine whether the Applicant was unfairly dismissed, having regard to s.385 of the Act.

[18] It is common ground that the Applicant was dismissed and the Small Business Fair Dismissal Code has no application in circumstances where the Respondent employed 56 employees. I have found that the dismissal was not a case of genuine redundancy.

[19] Accordingly, the only remaining requirement, within s.385 of the Act, for a finding that the Applicant was unfairly dismissed is a finding that the dismissal was harsh, unjust or unreasonable (s.385(b) of the Act).

Harsh, unjust or unreasonable (s.387 of the Act)

[20] In order to determine whether the Applicant was unfairly dismissed it is necessary to consider whether the termination was harsh, unjust or unreasonable, against the criteria in s.387 of the Act:

“In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that 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.

[21] In the circumstances of this matter, involving a redundancy, but not a genuine redundancy within the meaning of s.389 of the Act, I have regard to:

● the observations of Vice President Watson in Maswan v Escada Textilvertrieb T/A ESCADA 5(ESCADA) that “. . . a decision to dismiss on account of redundancy will only be harsh, unjust or unreasonable if the rationale for the decision is seriously undermined or if there is a serious error in procedure such that renders the termination unfair in the circumstances”; and

● the majority decision in UES (Int’l) Pty Ltd v Harvey, 6 (UES) in which it was found that the termination was harsh, unjust or unreasonable, notwithstanding “sound, defensible and well-founded reasons” for the dismissal, being that the employer no longer required the employee’s job to be “performed by anyone because of changes in the operational requirements of its enterprise and it was not reasonable in all the circumstances to relevantly redeploy” the employee.7

Valid reason (s.387(a) of the Act)

[22] The Applicant’s employment was terminated because the Respondent no longer required his job to be performed by anyone because of a structural change to the Respondent’s business – the removal of the spare driver position occupied by the Applicant and the failure of the Applicant to take up an alternate position, on the same terms and conditions, which arose from the creation of a second “co-mingled run” (and the transfer of the employee undertaking the existing run to the new run).

[23] The reasons for the dismissal of the Applicant were not related to his capacity or conduct. There was no evidence of any problems with the Applicant’s conduct or performance.

[24] Accordingly, there cannot have been and was not a valid reason for the Applicant’s dismissal which related to his capacity or conduct. This is a neutral matter as to whether the Applicant’s dismissal was harsh, unjust or unreasonable in the context of the current matter.

Notification and opportunity to respond (ss.387(b) and (c) of the Act)

[25] The matters in ss.387(b) and (c) are concerned with whether there was procedural fairness in respect of a reason for dismissal related to the Applicant’s capacity or conduct. In fact, given the evidence as to the meetings in April 2014, whilst the Applicant was notified of the reason for the redundancy and provided with an offer of an alternate position, there was no real opportunity given to contest the redundancy. However, given the dismissal was not based on the Applicant’s conduct or performance, these are neutral matters.

Support person (s.387(d) of the Act)

[26] The Respondent did not allow the Applicant to have a support person, Mark, present at the meeting of 24 April 2014. I consider this to be a matter supportive of a finding that the dismissal was harsh, unjust or unreasonable.

Unsatisfactory performance (s.387(e) of the Act)

[27] The Applicant’s dismissal did not relate to unsatisfactory performance.

Size of the enterprise and human resource management (ss.387(f) and (g) of the Act)

[28] The Respondent has over 56 employees and does not have dedicated human resources staff. I do not find that the absence of specialist human resources expertise adversely impacted upon the Respondent’s deficiencies in meeting its obligations under clause 8.1 of the Award.

Other matters (s.387(h) of the Act)

[29] I have already found that the Applicant’s employment was terminated because the Respondent no longer required the Applicant’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise, and because the Applicant declined an offer of alternate employment, on the same terms and conditions, arising out of the restructure of the Respondent’s business. In my view, this provides a sound, defensible and well-founded reason for the Applicant’s dismissal and a valid reason for the termination not related to conduct or performance of the Applicant. This consideration goes strongly against a conclusion that the dismissal was harsh, unjust or unreasonable.

[30] I have also found that the Respondent failed to consult the Applicant as required by clause 8.1 of the Award. However, in the circumstances of this matter, I do not regard the failure to meet the consultation obligations in the Award to be significant in the context of determining whether the termination was harsh, unjust or unreasonable. I find that the verbal explanation of the changes and the limited options available at the time were such that more extensive consultation would not have altered the outcome arrived at by the Respondent. Whilst the Applicant asserted that other options for continuing employment were available at the time of the dismissal, the evidence does not support that conclusion. Whilst other employees were engaged subsequent to the dismissal, I am satisfied that they were employees engaged to fill the position which the Applicant declined and additional employees engaged by the Respondent, consequent upon its acquisition of part of another business, two months after the Applicant’s termination did not provide an option for continuing the Applicant’s employment at that time. Similarly the temporary reinstatement of the spare driver position, four months after the Applicant’s termination, in the context of further structural changes in the Respondent’s business, including the acquisition of part of another business did not provide an option for continuing the Applicant’s employment at that time of the dismissal. In my view, the absence of consultation in accordance with the Award was not a serious procedural deficiency of a type contemplated by Vice President Watson in ESCADA. In the particular circumstances of this matter, this consideration provides little support to a conclusion that the Applicant’s dismissal was harsh, unjust or unreasonable.

Conclusion regarding harsh, unjust or unreasonable

[31] Taking into account the matters referred to above, I am not satisfied that the dismissal of the Applicant by the Respondent was harsh, unjust or unreasonable. There was a sound, defensible and well-founded reason for the termination of the Applicant’s employment. As noted by the majority in UES, 8that a failure to consult does not necessarily mean that a dismissal was harsh, unjust or unreasonable. In this case, deficiencies in the consultation about the redundancy would not have altered the outcome arrived at by the Respondent and provides little support for a finding that the termination was harsh, unjust and unreasonable. The failure to allow the Applicant a support person at the 24 April 2014 meeting lends some support to a finding that the termination was harsh, unjust or unreasonable, but not to the extent of outweighing the valid reason for the termination.

[32] In all the circumstances, I find that the termination was not harsh, unjust or unreasonable and, as a result, find that the applicant was not unfairly dismissed.

[33] The Application is dismissed.

The Respondent’s costs application

[34] As already noted, on 4 December 2014 the Respondent made a s.402 application for an order against the Applicant for costs incurred by the Respondent because of an unreasonable act or omission of the Applicant in connection with the conduct or continuation of the matter (s.400A(1) of the Act). In my correspondence to the Applicant of 5 December 2104, I afforded the Applicant an opportunity to put submissions in relation to the costs application. The Respondent waived its right to put reply submissions in order to avoid additional costs. 9

[35] In support of its costs application, the Respondent relied on a 21 November 2014 letter to the Applicant from its solicitors 10 which was emailed to the Applicant and posted to the last known address of the applicant as it appeared on the Notice of Ceasing to Act filed by the Applicant’s former solicitors. The letter noted that the Applicant had not complied with directions on 22 October 2014 to file further evidence and submissions. The respondent relied in particular on points 4 and 5 of the letter, which advised:

“4. We request you confirm by 5.00pm on Monday 1 December 2014 that you still intend to prosecute your application at the Fair Work Commission.

5. Please note that if you do not appear at the hearing scheduled for Thursday 4 December 2014, our client reserves its rights to seek an order for its costs thrown away as a consequence of your non appearance.”

[36] The Respondent submitted that the failure of the Applicant to respond to its letter in relation to point four and his non-attendance on 4 December 2014 had caused costs to be “thrown away” in respect of preparation for the hearing on 4 December 2014 and the appearance of the Respondent’s Counsel on 4 December 2014.

[37] The Respondent submitted that the Applicant’s failure to appear was an unreasonable act in circumstances where he was put on notice (letter of 21 November 2014) that if he did not appear he would be liable for an order for costs to be made. It submitted that the failure to respond to the Respondent’s attempt to confirm whether the Applicant still intended to prosecute his claim left the Respondent with no alternative but to be ready for the hearing on 4 December 2014, to prepare for the hearing and to engage Counsel to be ready to appear on 4 December 2014.

[38] The Respondent sought an order for costs in respect of those costs incurred by the Respondent after 5.00 p.m. on Monday, 1 December 2014 for preparation undertaken on the two following days (2 and 3 December 2014) and Counsel’s brief for 4 December 2014, which costs were “thrown away” by the Applicant’s omission/unreasonable act.

[39] In his 7 December 2014 email, the Applicant did not respond to the Respondent’s cost application, other than to highlight financial circumstances which had caused him to move residence on several occasions between the time of his dismissal and the hearing on 4 December 2014 and an inability to meet legal fees required to secure the services of a barrister to represent him in respect of his application.

[40] However, the Applicant was not required, by my correspondence of 5 December 2014 to him, to respond to the cost application until 19 December 2014.

[41] In relation to the Respondent’s costs application, the Applicant has the opportunity to put submissions in response to those of the Respondent, as recorded in the Transcript and provided to him on 5 December 2014. Those submissions should be provided to the Commission and copied to the Respondent’s solicitors by 10.00 a.m. on Friday, 19 December 2014.

[42] The Respondent, having had an opportunity to consider the information provided by the Applicant at 5.58 p.m. on 7 December 2014 in relation to his failure to attend the Conference/Hearing on 4 December 2014 (in relation to the circumstances in which the Applicant has sought to progress his application, including the financial circumstances, his confusion as to the hearing process and his desire, but inability to secure legal representation) should advise the Commission, and the Applicant, if it wishes to press its costs application, in whole or in part, against the Applicant by Wednesday, 17 December 2014.

SENIOR DEPUTY PRESIDENT

Appearances:

J D’Abaco with J Barilla and V Barilla for the Respondent

Hearing details:

2014.

Melbourne:

December 4.

 1   Transcript, at paras 14–15.

 2   Transcript, at para 23.

 3   Transcript, at para 94–108.

 4   Transcript, at para 109.

 5   [2011] FWA 4239, at para 39.

 6   [2012] FWAFB 5241.

 7   [2012] FWAFB 5241, at para 47.

 8   [2012] FWAFB 5241.

 9   Transcript, at paras 108–109.

 10   Exhibit SW 7.

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