Frank Fiumara v Venture Campbellfield Pty Ltd

[2013] FWC 2123

Note: An appeal pursuant to s.604 (C2013/3931) was lodged against this decision.

[2013] FWC 2123

FAIR WORK COMMISSION

INTERIM DECISION

Fair Work Act 2009
s.739—Dispute resolution

Frank Fiumara
v
Venture Campbellfield Pty Ltd
(C2013/2804)

COMMISSIONER RYAN MELBOURNE, 8 APRIL 2013

Alleged dispute concerning return to work after applicant’s illness.

[1] The following decision (now edited) was issued during proceedings on 5 April 2013.

[2] I note that the application filed by Mr Fiumara identifies the dispute in some detail concerning his state of health and the way in which his employer has dealt with what are existing cardiac problems that Mr Fiumara has. The essence of the dispute is that the respondent employer has stood down Mr Fiumara from his employment and not permitted him to return to work until the respondent is satisfied as to certain matters.

[3] The remedy sought by Mr Fiumara in this matter was outlined in his application as (1) the respondent allow the applicant to resume work immediately and (2) the respondent recredit any personal leave that the applicant may be required to take in the period after his medical clearance was provided which was 17 January 2012. The material that is before the commission is constituted by two affidavits of Lucinda Weber, exhibits A1 and A3, and an affidavit of Mr Fiumara as the applicant in this matter which was exhibit A4.

[4] One thing that is apparent from the material is that Mr Fiumara between 25 January 2013 and 19 March 2013 was employed on a particular task which was checking speaker bezels and also checking lock bezels.

[5] What is clear is that up until 19 March 2013 Mr Fiumara was employed on a particular task. The employer, the respondent in this matter, stood down Mr Fiumara on 19 March on pay, but on 21 March the respondent indicated to the applicant that it was considering terminating his employment. The matter was before me on 2 April and then again before me today. What has changed since the applicant was stood down on full pay was that he is now stood down without pay.

[6] The correspondence that was sent to the commission dated 4 April 2013 by Mr Dan Feldman, partner of HR Legal, as the legal representatives for the employer made it very clear that Mr Fiumara's employment would not be terminated pending confirmation of when his surgery is to take place. I can put it no higher than if Mr Fiumara told his employer today that the surgery was taking place, then as from the time that the respondent is told that the surgery is to take place the respondent reserves the right to terminate the employment of the employee.

[7] The respondent has determined that Mr Fiumara will remain stood down without pay. The difficulty I have with the position of the respondent is that it does not appear to accord with the plain language of the Venture Campbellfield Enterprise Agreement 2012 (the agreement) which binds both the employer and the employee. The agreement has at clause 1.6 agreement objectives and it starts off at 1.6.1 by referring to the collaborative efforts of the parties in the development of a consolidated enterprise agreement. It makes very clear and repeats what is the essence of clause 1.3 that this is a stand-alone agreement. There are no other matters which are incorporated into the document. What is in the document is the sum total of the terms and conditions of employment. Clause 1.6.4 says as part of the agreement objectives:

“The company and unions party to this agreement agree to work together to:

- cooperatively support Venture's growth and investment plans and

- ensure high standards of open and honest and communication based upon trust and respect for the individual and those that are party to this agreement.”

[8] It would appear that that objective alone seems to have been called into question by the conduct of the respondent in simply converting a stand down with pay into a stand down without pay and simply telling the applicant that that was to be his current status. A further difficulty I have with the approach of the respondent in this matter is that it again seems to be inconsistent with the provisions of the agreement which relate to flexible work. Clause 5.3 of the agreement is titled ‘Key Structural Efficiency Principles and 5.3.1 talks in terms of an integrated structure non-trade and the second paragraph of 5.3.1 says:

“As part of this integrated structure and to maintain flexibility within the classification structures (non-trade), employees at high classifications may be called on to perform a range of duties provided this is not designed to deskill.”

[9] The language is unique to this agreement but represents a feature which is common in most workplaces and most enterprise agreement and that is, whilst an employee may have a particular job title or a regular job, employers expect and employees agree through enterprise agreements to be flexible in performing any work that is within their skill set. What is very clear is that Mr Fiumara has performed work that he has been asked to perform where the work is clearly not designed to deskill him from the position he describes that he holds as team leader in material planning and logistics in the door trim area and the work of checking speaker bezels and lock bezels does not appear to be an exercise of deskilling, in which case it is consistent with the flexibilities built into this agreement.

[10] If Mr Fiumara has, as at the date he was stood down, been engaged in work which was within the operation of the agreement, then for the employer to say, as it does in the letter from Mr Feldman on 4 April, that Mr Fiumara does not currently have capacity to perform the inherent requirements of his position seems to be completely misplaced. The inherent requirements of the position are to be a flexible employee. The flexibility seems to have been established by the affidavit of Mr Fiumara in describing the work that he was performing between 25 January and 19 March when he was stood down.

[11] I also note that there is a stand-down clause in the relevant agreement and that stand-down clause is clause 4.10. The stand-down clause is very particular. It is also very short. Clause 4.10 reads at 4.10.1:

“The company is able to deduct payment for any day an employee cannot be usefully employed because of a strike or a breakdown in machinery or a stoppage of work for which the company cannot reasonably be held responsible.”

And at 4.10.2:

“The company is able to deduct payment for any part of a day on which any employee cannot be usefully employed in any plant or complex of plants at any one site where a ban or limitation on the performance of the work exists.”

[12] There is nothing in the material provided by the respondent in the correspondence from HR Legal that suggests that it is invoking or relying upon clause 4.10 of the agreement. In the absence of a reliance upon clause 4.10, the employer does not have the right to stand down an employee without pay. The employer may continue to have a right to stand down any employee with pay subject to the broad common law constraints about not using it as a means to prevent an employee maintaining the level of skill which is necessary for them to gain further employment, but in the context of this matter a stand down without pay of Mr Fiumara is not authorised or permitted by the enterprise agreement.

[13] Given that the employer has given a highly qualified and highly limited guarantee not to terminate the applicant until a certain event occurs, there is at least no reason why until that event occurs the applicant has not been engaged on paid employment or paid stand down. There is nothing in the material before me and especially in the material from the employer which would suggest that a process that leads to the termination of Mr Fiumara because of his incapacity to perform the inherent requirements of the position could be well founded and if that is the basis upon which the respondent is progressing towards a possible termination of the applicant, the respondent should very carefully consider its position in light of its obligations under the enterprise agreement.

[14] That is as far as my interim decision will go simply because I am relying upon the information which is put before me. None of the information put by Mr Fiumara has been tested, nor has any of the material that is in the affidavits of Ms Weber been tested. I do not think the decision needs to go any further than that as an interim decision, but what that interim decision does do is that the analysis I have undertaken of the factual material before me also raises a separate and completely distinct matter which is a matter that I must deal with.

COMMISSIONER

Appearances:

E. Burgio for the Applicant

No appearance for the Respondent

Hearing details:

2013

Melbourne

April 2, 5

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