Flasza v Countrywide Pet Foods Pty Ltd
[2016] FWC 2881
•9 May 2016
[2016] FWC 2881
DECISION
| Fair Work Act 2009 | |
| s.394—Unfair dismissal | |
| John Flasza | |
| v | |
| Countrywide Pet Foods Pty Ltd | |
| (U2016/3823) | |
| COMMISSIONER ROE | MELBOURNE, 9 MAY 2016 |
| Application for relief from unfair dismissal. |
[1] Mr Flasza was dismissed from his employment with Countrywide Pet Foods Pty Ltd
effective from 31 December 2015. Mr Flasza claims his dismissal was unfair. Countrywide
Pet Foods is not a small business.
[2] I produced the following summary of the facts of the case based upon the material
provided by the parties. The parties were provided with an opportunity to comment and they
agreed with the statement of facts.
The Applicant was employed continuously from 15 October 2012 until 31
December 2015.
Until November 2015 the Applicant was working as a slaughterman.
The company alleges that the Applicant was verbally warned in July 2015 about his
inappropriate conduct towards other employees and that there had been three
complaints made by employees who worked with the Applicant in the slaughter
room. The Applicant continued to work in the slaughter room from July 2015 until
November 2015 following the verbal warning. The Applicant accepts that he was
spoken to about an incident with one employee but denies any other incident or
complaint was raised with him. The Applicant says that the manager was laughing
when the incident was raised with him so he did not believe it was a proper
warning.
The company also alleges that it had concerns at various times during the period of
employment about the Applicant’s performance and this was the subject of
discussion. The employer does not allege that there was any formal warning about
performance.
The Applicant had an accident at work on 1 October 2015 which led to a period of
time off.
Upon returning to work from time off due to the workplace injury the Applicant
worked for one week and then had two and a half week’s carers leave. Upon return
from the carers leave he was transferred to a position in the mincing room around
19 November 2015. This position was on a lower rate of pay to his previous work
as a slaughterman. The company says that this restructure was also due to the
[2016] FWC 2881
downturn in work and that three employees were moved from the slaughter room to
the mincing room. The Applicant denies that the transfer was due to shortage of
work but agrees that he was told that this was the only work available to him and
that he had to take it or leave the job. The Applicant believes that the transfer and
the dismissal were due to his workplace injury.
The Applicant says that he did not agree to move to the mincing room. The
employer says that the Applicant did agree to move to the mincing room. However,
it is not disputed that the Applicant did in fact commence work in the mincing
room as directed.
On 15 December 2015 the Applicant was given written notice of redundancy due to
lack of work. He was given three weeks’ notice. The termination was effective 7
January 2016.
The Applicant left work one week earlier than the termination date.
The termination letter, the separation certificate and the employer’s submission
confirm that the Applicant was dismissed due to shortage of work.
The employer has provided evidence of the downturn in work and that total
collections had reduced by 1.5% and this meant that “less meat works labour
required.”
The employer argues that the Applicant was selected to be redundant (“laid off”
due to shortage of work is the term used in the termination letter) as he was a poor
performer compared to other employees.
If the dismissal is a redundancy the Applicant is entitled to 7 weeks’ pay. The
Applicant was not a daily hire worker engaged in connection with slaughtering in
the meat industry. The separation certificate shows that the Applicant received
annual leave and the appointment letters indicate that the employment was on a
weekly payroll basis not a daily hire basis.
The fact that the work might still be being performed does not mean that it is not a
redundancy. If there is a reduction in work and a consequent reduction in the
number of employees then the person selected to be laid off is dismissed due to
redundancy because that person’s job is no longer being performed by anyone. This
applies even if the work is not reduced when the work is being redistributed
amongst remaining workers.
The employer says that there was a meeting with staff two weeks prior to the
dismissal and at that meeting “everyone in the mincing and boning rooms were
notified that there was too many staff for the production output and someone would
be dismissed on performance base”. The Applicant says that he was not consulted
about the shortage of work.
The employer says that it considered opportunities for redeployment. The employer
says that redeployment back to the slaughter room was inappropriate because of the
complaints earlier in the year. The employer says that the Applicant had said that
he didn’t want to do bone or freezer work. It is not suggested that these
redeployment options were discussed with the Applicant.
The Applicant is not seeking reinstatement but is seeking compensation.
The Applicant has earned $10,004.49 since the dismissal. His employment with the
new employer is casual and the hours of work per week are very variable. In some
weeks he has worked only 10 hours and in other weeks he has worked 38 hours.
[3] The employer advised that two of their witnesses were unwilling to attend the hearing
in person. I advised the employer that I would not be able to have regard to any of the
evidence of those two witnesses which is contested by the Applicant. I advised the employer
[2016] FWC 2881
that if they wished to rely upon the evidence they could request the Fair Work Commission to
issue an order for the two persons to attend the hearing. The employer did not request an order
and as the relevant facts in these statements are contested I did not admit the statements.
There was no objection to this course of action.
[4] Mr Flasza gave evidence and Mr Casey gave evidence for the company.
[5] Having heard the evidence I am satisfied that:
Mr Flasza was warned concerning inappropriate conduct towards another employee
in July 2015. Mr Flasza accepts that his conduct was unacceptable.
Mr Flasza was not advised of the other two alleged complaints and denies the
allegations. I do not consider these complaints to be substantiated.
The alleged inappropriate behaviour in July 2015 does not constitute a valid reason
for dismissal. The employer did not consider it so at that time and the employer
allowed Mr Flasza to continue working with the relevant employees in the same
work area for a further four months. There were no issues of inappropriate conduct
raised during these four months.
Mr Flasza was moved from the slaughter area to the mincing/boning area three
weeks prior to the dismissal at least in part due to shortage of work. I accept Mr
Casey’s evidence that three employees left from the mincing/boning area and he
moved three employees from the slaughter area including Mr Flasza to replace
them. He did not replace the three employees in the slaughter area. Mr Flasza
believed one employee was replaced but he was vague about the details. I prefer
Mr Casey’s evidence that there was no replacement.
Mr Casey says that he selected Mr Flasza for transfer because he believed that Mr
Flasza was not able to do the heavy physical work due to an earlier workplace
injury. Mr Flasza denies that he was impaired by the earlier workplace injury and
does not accept the validity of his selection. It is not necessary to decide this
matter.
I accept the evidence of Mr Casey that he did ask employees to attend a meeting
two weeks prior to the dismissal at which he advised of the shortage of work and
that an employee would be made redundant. However, I have no reason to doubt
the evidence of Mr Flasza that he was not present at any such meeting. Mr Casey
had no recollection of Mr Flasza being present. Mr Flasza was aware of rumours
that someone might be made redundant due to shortage of work but he did not
receive clear advice prior to the dismissal.
Mr Casey accepted that there was no opportunity for discussion at the time of the
dismissal. Mr Flasza was simply advised that he had been selected and that he was
being dismissed due to shortage of work.
Mr Casey said that the selection of Mr Flasza was based upon performance. There
was no particular criteria or process for selection.
I accept Mr Casey’s evidence that during the period from December 2015 until
March 2016 the shortage of work continued and Mr Flasza was not replaced during
this period. Mr Flasza believed that someone else may have been appointed but his
evidence on this point was vague. Mr Casey gave evidence that one employee left
during 2016 and was replaced.
[2016] FWC 2881
Was the dismissal a genuine redundancy?
[6] I am satisfied that Mr Flasza was dismissed for reasons of redundancy. He was not
dismissed due to conduct or performance. The fact that a number of employees remained in
the business doing the work formerly done by Mr Flasza does not mean that there was no
redundancy. I accept the evidence of Mr Casey that the number of persons doing the available
work was reduced by one when Mr Flasza was made redundant. His position was not
replaced. I accept the evidence of Mr Casey that the volume of cattle slaughtered declined in
the period leading up to the dismissal of Mr Flasza and that he was dismissed due to shortage
of work. I am satisfied that the dismissal was a redundancy because Countrywide no longer
required Mr Flasza’s job to be performed by anyone because of changes in the operational
requirements.
[7] For the dismissal to be a genuine redundancy the three conditions set out in Section
389 need to be satisfied:
“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.”
[8] The first condition is satisfied. The second condition is compliance with any award
obligation to consult about the redundancy. I am satisfied that the work of Mr Flasza with
Countrywide is covered by the Meat Industry Award 2010. Clause 9.1 of that Award
provides:
“9.1 Consultation regarding major workplace change
(a) Employer to notify
(i) Where an employer has made a definite decision to introduce major changes
in production, program, organisation, structure or technology that are likely to
have significant effects on employees, the employer must notify the employees
who may be affected by the proposed changes and their representatives, if any.
(ii) Significant effects include termination of employment; major changes in
the composition, operation or size of the employer’s workforce or in the skills
required; the elimination or diminution of job opportunities, promotion
opportunities or job tenure; the alteration of hours of work; the need for
retraining or transfer of employees to other work or locations; and the
restructuring of jobs. Provided that where this award makes provision for
[2016] FWC 2881alteration of any of these matters an alteration is deemed not to have significant
effect.
(b) Employer to discuss change
(i) The employer must discuss with the employees affected and their
representatives, if any, the introduction of the changes referred to in
clause 9.1(a), the effects the changes are likely to have on employees and
measures to avert or mitigate the adverse effects of such changes on employees
and must give prompt consideration to matters raised by the employees and/or
their representatives in relation to the changes.
(ii) The discussions must commence as early as practicable after a definite
decision has been made by the employer to make the changes referred to in
clause 9.1(a).
(iii) For the purposes of such discussion, the employer must provide in writing
to the employees concerned and their representatives, if any, all relevant
information about the changes including the nature of the changes proposed,
the expected effects of the changes on employees and any other matters likely
to affect employees provided that no employer is required to disclose
confidential information the disclosure of which would be contrary to the
employer’s interests.”
[9] There was some suggestion from the employer that the appropriate Award is the Food
Beverage and Tobacco Manufacturing Award 2010. If I am wrong about the appropriate
award then the Award suggested by the employer also contains an identical consultation
provision.
[10] I am satisfied that the proposed redundancy of Mr Flasza was a significant change
which had a significant effect on employees and which meets the definition in Clause 9.1(a). I
am also satisfied, and it is not contested, that Mr Flasza had no meaningful opportunity to
influence the decision maker. There have been many decisions of the Commission which have
found that the consultation provision is not met unless there is a meaningful opportunity to
influence the decision maker. There was no opportunity for Mr Flasza to discuss measures to
avert or mitigate the adverse effects of the proposed change and there was no consideration by
the employer of any matters raised. I am also not satisfied that Mr Flasza received written
advice about the nature of the changes. It is obvious that if an opportunity had been provided
Mr Flasza would have questioned the rationale for the redundancy and the selection process
for the redundancy in particular.
[11] I am not satisfied that the Award consultation requirements were met.
[12] I am also not satisfied that the third requirement of Section 389 concerning
redeployment was met. I cannot make a positive finding that there were opportunities for
redeployment. I accept the evidence of Mr Casey that he believed that there were no suitable
opportunities for redeployment. However, one of the reasons for consultation is to enable the
employee to have input into this matter. Mr Casey believed that Mr Flasza did not want to
work in certain areas. Faced with dismissal it is possible that Mr Flasza may have had a
different view.
[2016] FWC 2881
[13] The dismissal was therefore a redundancy but not a genuine redundancy. Mr Flasza is
therefore protected from unfair dismissal.
Was the dismissal unfair?
[14] In deciding whether or not the dismissal was unfair I am required to consider the
following:
“387 Criteria for considering harshness etc.
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.”
[15] Mr Flasza was dismissed due to shortage of work and not because of conduct or
performance. Section 392(a), (b), (c) and (e) are therefore not relevant.
[16] Mr Flasza was not refused a support person. Section 392(d) is a neutral factor.
[17] Countrywide is not a small business and the size of the business did not influence the
procedures utilised for the dismissal. Countrywide did not have specialised human resources
employees but I am not satisfied that this influenced the procedures adopted. Sections 392(f)
and (g) are neutral factors.
[18] The relevant other factors (Section 392(h)) are:
My finding that the dismissal was for reasons of redundancy.
My finding that the dismissal was not a genuine redundancy due to the failure to
comply with the consultation and redeployment requirements.
The earlier warning for an incident of poor conduct in July 2015.
The absence of any clear objective and transparent criteria for selection for
redundancy which may have been addressed through a consultation process,
including in respect to redeployment.
[2016] FWC 2881
Mr Flasza’s belief that he was selected first for demotion to the mincing area and
then for redundancy due to his recent absences due to a workplace injury.
[19] For the reasons discussed earlier I am not satisfied that the earlier warning for poor
conduct in July 2015 should affect my judgement as to whether or not the dismissal was fair.
The warning is a relevant consideration but the incident was not so serious as to make
dismissal for reasons of redundancy fair given the failure to comply with the requirements for
consultation and consideration of redeployment. I consider that the requirements for
consultation and consideration of redeployment are important and substantive obligations. In
the circumstances of this case they would certainly have made the process fairer for Mr Flasza
even if the outcome did not ultimately change. However, I also consider that consultation may
have made a difference to the outcome. It is not necessary to determine the issue of whether
or not Mr Flasza’s selection for redundancy was influenced by his recent workplace injury.
[20] I am satisfied taking into account all of these factors that the dismissal was unfair
because it was unjust to terminate Mr Flasza without proper consultation and consideration of
redeployment.
Remedy
[21] Mr Flasza does not seek reinstatement. Countrywide opposes reinstatement. In
circumstances where I have accepted that there was a redundancy situation and the employee
does not seek reinstatement I accept that reinstatement is inappropriate.
[22] Mr Flasza seeks compensation. He also seeks “assistance for my suffering”. He also
seeks his 7 weeks’ severance or redundancy pay entitlement. He also seeks restitution for
underpayment of wages particularly due to the move to the mincing area at a lower rate of pay
three weeks prior to his dismissal. As noted above it appears on the facts before me that Mr
Flasza may be entitled to 7 weeks’ severance or redundancy pay. However, it is not within my
power to make an order to rectify an underpayment as part of an unfair dismissal remedy.
That is a matter which can be pursued elsewhere. I am also not permitted to include an
amount of compensation for shock, distress or humiliation caused by the manner of the
dismissal (Section 392(4). I have not included any such amount.
[23] I consider it appropriate to make an order for compensation. Given the low income of
Mr Flasza any compensation I might order will not exceed the compensation cap of half the
high income threshold.
[24] I am required to consider the following matters in determining compensation (Section
| 392(2)): |
“Criteria for deciding amounts
(3) In determining an amount for the purposes of an order under subsection (1), the
FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been
likely to receive, if the person had not been dismissed; and
[2016] FWC 2881
(d) the efforts of the person (if any) to mitigate the loss suffered by the person
because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or
other work during the period between the dismissal and the making of the order
for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person
during the period between the making of the order for compensation and the
actual compensation; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s
decision to dismiss the person, the FWC must reduce the amount it would otherwise
order under subsection (1) by an appropriate amount on account of the misconduct.”
[25] There was no submission that any order would impact the viability of the enterprise.
[26] The period of service exceeded three years. This is a relatively long period of service
in the context of the meat industry.
[27] I consider that had the dismissal not occurred Mr Flasza would have remained in
employment for a period of six months. In reaching this conclusion I take into account:
A redundancy was required for operational reasons but if consultation had occurred
Mr Flasza may not have been selected for redundancy.
It is possible that even if consultation had occurred the outcome would have been
the same but there would have been some delay occasioned by the consultation.
Although there is some fluctuation in the business due to the availability of
livestock, the business is relatively longstanding and there is no reason to consider
that it will not continue.
The relatively long period of service of Mr Flasza.
The warning issued to Mr Flasza in July 2015. The employer put considerable
emphasis on this matter but I was not satisfied that this incident is a significant
factor which reduces the likelihood of ongoing employment.
[28] Mr Flasza obtained alternative employment prior to the end of the three week notice
period. However, that employment is casual employment. Mr Flasza made adequate efforts to
mitigate his loss.
[29] Although I understand why Mr Flasza considers it to be unfair, I must calculate the
income Mr Flasza would have earned if not dismissed on the basis of his income in the
mincing room not his earlier income in the slaughter area. The income at the time of dismissal
was $160.16 per day plus superannuation. This totals $876.88 per week. Between August and
October six days per week work was guaranteed. The period of anticipated further
employment is 26 weeks. This period can be divided into two parts:
The period from the dismissal until the date of payment of compensation, which
will be two weeks from the date of this decision. That is a period of 19 weeks.
The remaining period of seven weeks.
[2016] FWC 2881
[30] In the 19 week period prior to compensation payment Mr Flasza would have earned
$16,660.72. In the remaining 7 week period Mr Flasza would have earned $6,138.16.
[31] In the first 16 weeks since the dismissal Mr Flasza earned $10,004.49. It is reasonable
to assume that in the three weeks between then and the date of compensation he would earn a
further $1,875.84 making a total for the 19 weeks of $11,880.33. Superannuation must be
added to this amount, making a total of $13,009.
[32] the amount of compensation applicable to the 19 weeks between the date of the
dismissal and the date for payment of compensation is therefore $3,651.72.
[33] These amounts are reasonably certain and no deduction for contingencies should be
| made. | |
| [34] | The compensation for the remaining period of 7 weeks should be reduced by 20% for |
contingencies. That amount is therefore $4,910.53. There are no other matters I consider
relevant. The total compensation is therefore $8,562.25.
[35] I consider based on the evidence of Mr Casey that Mr Flasza’s misconduct in July
2015 was a factor in his selection for redundancy. However, I am not satisfied that there is
sufficient evidence to justify a conclusion that it was reasonable that this be a significant
contributor to the selection. I will therefore make a small discount of 10% for this reason.
[36] The remaining compensation of $7,706 does not exceed the six month cap on
compensation. I will order that compensation of $7,706, less appropriate taxation, be paid
within 14 days. Liberty will be provided to the employer to apply to vary the order in respect
to the time period for payment.
COMMISSIONER
Appearances:
Mr J Flasza represented himself.
Mr K Casey appeared for the Respondent.
Hearing details:
2016
Shepparton
May 3
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