Garry Bayley v Temples (WA) Pty Ltd T/A Temples WA

[2016] FWC 4236

[2016] FWC 4236

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Garry Bayley
v
Temples (WA) Pty Ltd T/A Temples WA
(U2015/17192)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 29 JUNE 2016

Application for relief from unfair dismissal – genuine redundancy –failure to consult in terms of enterprise agreement – harsh unjust or unreasonable - compensation

[1] This decision deals with the issue of whether the termination of Mr Bayley’s employment was a case of genuine redundancy and the merits of his unfair dismissal application made on 30 December 2015. It follows a decision (2016 FWC 2727) I issued on 6 May 2016 in which I set out my reasons for dismissing a jurisdictional objection made by Temples (WA) Pty Ltd T/A Temples WA (Temples) made on the basis that Mr Bayley was a casual employee who was not employed on a regular and systematic basis. Mr Bayley’s application was not able to be settled through the conciliation process. The merits of the application were the subject of a hearing, by video link, on 16 June 2016. As was the case in the jurisdictional hearing, Mr Bayley represented himself and Temples was represented by Mr Rodgers, of counsel.

[2] As I indicated in the May 2016 jurisdictional decision, Mr Bayley worked for Temples as a relief truck driver on work associated with a contract which Temples had with the Perth Metropolitan Waste Water Treatment Plants. He was engaged as a casual employee from December 2013, under the terms of the Temples (WA) Pty Ltd Transport Workers Certified Agreement (Bulkfeeds & Biosolids) 2014 (the Agreement). He was dismissed in December 2015.

[3] Temples asserts that the termination of Mr Bayley’s employment met the requirements for a genuine redundancy in that he was aware of the impending end of the waste water contract and because, by December 2015, there was insufficient work for him to undertake.

[4] In what I have taken to be an alternative argument, Temples asserts that it selected Mr Bayley as an employee to be made redundant because of his relatively poor performance record.

[5] In terms of the redundancy issue, Mr Bayley’s position is that he was not consulted with respect to the termination of his employment and that Temples did not advise, in its response to the application, or in the Centrelink Separation Certificate, that he had been made redundant. Further, Mr Bayley asserts that the material published by Water Corporation WA Aroona Alliance, which was the Temples’ client, indicated that biosolids production increased in the period leading up to December 2015. Mr Bayley asserts that 12 days after he was dismissed Temples advertised his position. Mr Bayley asserts that Temples then engaged another employee.

[6] Mr Bayley agreed that he and a number of other drivers had been advised on 10 November 2015 that the Temples contract would not be renewed after the end of April 2016. Mr Bayley understood that Temples would insist that its drivers go with any trucks taken over by the new contractor. Further, that Temples had the capacity to absorb the employment of the drivers.

[7] Mr Bayley asserts that the termination of his employment was unfair because the asserted reduction in work had not occurred and the waste water contract had not concluded. He asserts that he was dismissed because he had identified workplace health and safety issues. Mr Bayley denied being given any warnings while he was employed.

[8] Mr Bayley’s evidence went to support his assertions. This included his reliance on information from the Water Corporation WA Aroona Alliance. In this respect he explained how he had extracted and displayed various information. He also explained his understanding of the employment of another driver.

[9] Mr Patchett was Mr Bayley’s manager. His evidence went to the work undertaken by Mr Bayley and how this was arranged. Mr Patchett’s evidence was that the casual relief work that had been allocated to Mr Bayley had been reducing in the weeks prior to the termination of his employment so that he decided that it was appropriate to advise him that he would not be given more work and to issue him with a Centrelink Separation Certificate. Mr Patchett advised that Mr Bayley was not replaced although another former employee was engaged to undertake a single shift in late February 2016. Mr Patchett confirmed employment hiring reports from Temples which established that Mr Bayley was not replaced. Mr Patchett confirmed that Temples had advertised for truck driving work on a recruitment website shortly after the termination of Mr Bayley’s employment. He advised that this reflected a previously arranged advertising contract rather than reflecting a recruitment requirement. Mr Patchett confirmed that he endeavoured to arrange for the new contractor to employ the Temples drivers and also confirmed that the amount of alternative farm work available to Temples had reduced.

[10] Mr Patchett advised that the load volumes may not have reduced late last year but that the work available to Temples was more inconsistent. Mr Patchett confirmed that Temples had employed other drivers at other work sites in October and November 2015, before terminating Mr Bayley’s employment. He advised that he considered that Mr Bayley’s driving skills were not suited to that particular work.

[11] Ms Rumble is the Temples’ Payroll Administration Manager. Her evidence went to confirm the casual nature of Mr Bayley’s employment and the extent to which the work hours given to him accommodated his child care obligations. Ms Rumble also confirmed data extracted from the Temples payroll system, showing that Mr Bayley was not replaced.

Findings

[12] Section 385 of the Fair Work Act 2009 (the FW Act) states:

“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.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[13] A genuine redundancy is defined in s.389 in the following terms:

“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.”

[14] Consequently, if the termination of Mr Bayley’s employment met that definition it could not be unfair. I have considered the requirements of this definition in these circumstances.

[15] I have concluded that Mr Bayley’s employment termination was a consequence of declining relief work requirements and that he was not replaced. I accept that some two months later, Temples brought back another former employee to meet a shift work shortage but do not regard this as a replacement arrangement. I am not satisfied that the advertisement published shortly after Mr Bayley’s employment ended resulted in anyone being employed in Mr Bayley’s position. The employment data provided by Temples confirms that new employees have not been engaged since then. I am not satisfied that the employment of two drivers over the two months before the termination of Mr Bayley’s employment is relevant to the reduction in work available to him.

[16] I have accepted Mr Patchett’s evidence that work under the waste water contract became more irregular over the last two months of 2015.

[17] I have concluded that Mr Bayley was made aware of the loss of the contract under which he worked in November 2015 and that he was advised of the possibility that alternative work could be arranged.

[18] I do not regard the advice, recorded on the Centrelink Separation Certificate that Mr Bayley was dismissed because of a shortage of work, as indicative of anything other than just that. That advice does no run contrary to the Temples’ position that Mr Bayley was made redundant.

[19] In terms of s.389(1)(a) I have concluded that Mr Bayley’s position was not required because of changed contract work requirements. In this regard I am satisfied that the requirements of s.389(1)(a) are met. The extent to which Mr Bayley was not replaced is significant in this respect.

[20] In terms of s.389(1)(b), the Agreement incorporates the model consultation term. This states:

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

(a) discuss with the relevant employees:

(i) the introduction of the change; and

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

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

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

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

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

(iv) any other matters likely to affect the employees.” 1

[21] Mr Patchett conceded that no written advice about Mr Bayley’s redundancy was provided to him consistent with this requirement. Accordingly, this mandatory requirement was not met.

[22] In terms of s.389(2) there is limited information before me about the steps taken by Temples to seek to redeploy Mr Bayley. It is clear that Temples had reservations about Mr Bayley’s work performance and his ability to undertake driving work with the necessary level of expertise. Whilst I accept that the waste water contract work and farm work had reduced and that Temples is not a large employer, I am not satisfied that the evidence establishes that the necessary redeployment efforts had been made by Temples.

[23] Consequently, whilst I accept that the termination of Mr Bayley’s employment was the result of a redundancy situation, I am not satisfied that the strict requirements of s.389 were met in this case. This conclusion then requires that I consider whether the termination of Mr Bayley’s employment was harsh, unjust or unreasonable, in accordance with s.387 of the FW Act. This section states:

“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.”

Valid Reason (s.387(a))

[24] I have concluded that the termination of Mr Bayley’s employment was not related to his capacity or to his conduct. It may have been the case that Temples’ concerns about Mr Bayley’s work performance meant that it did not go to great lengths to retain him as a casual employee, but I am satisfied that the evidence of Mr Patchett confirms that the reason for the termination of his employment related to the reduction in available work.

[25] Consequently, there was no valid reason for the termination of Mr Bayley’s employment which was related to his capacity or to his conduct. I have adopted the same position as the majority in UES (Int’l) Pty Ltd v Leevan Harvey.² I have regarded this factor as a neutral consideration relative to whether the termination of Mr Bayley’s employment was harsh, unjust or unreasonable.

Notification and the Opportunity to respond (ss.387(b) and (c))

[26] Mr Bayley was neither notified of, nor given an opportunity to respond to, any reason for his dismissal which was related to his capacity or to his conduct. Just as was the case in UES (Int’l), I have similarly regarded this factor as a neutral consideration.

Support person (s.387(d))

[27] Temples did not unreasonably refuse to give Mr Bayley access to a support person to assist in discussions relating to his dismissal. However, the process followed by Temples to give effect to the termination of Mr Bayley’s employment meant that he did not have a realistic opportunity to involve someone else in that process. I have taken it that this is a factor which is indicative of unfairness.

Size of the Temples business and access to human resource management expertise (ss.387(f) and (g))

[28] Temples advised that it employed some 42 employees. I consider this to be indicative of a small organisation and am satisfied that Temples had neither sophisticated human resource management policies and procedures nor access to specialist human resource management advice. These factors mitigate in favour of the termination of Mr Bayley’s employment not being regarded as harsh, unjust or unreasonable.

Other matters (s.387(h))

[29] I am satisfied that Temples’ decision not to offer Mr Bayley further casual employment because of the reduction in the work which he had previously undertaken was a sound, defensible and well-founded reason for the termination of his regular casual employment. I have accepted that the combination of the reduction of work associated with the waste water contract and reduced farm work over that time meant that there were limited redeployment opportunities. I also accept that Temples may have had good reasons for deciding not to offer Mr Bayley any work at its other facilities. These factors mitigate in favour of the termination of Mr Bayley’s employment not being regarded as harsh, unjust or unreasonable.

[30] However, Temples’ reasons for not offering Mr Bayley any alternative work, which may have included its concerns about his driving skills or his limited availability to undertake work, do not appear to have been explored with, or have been explained to Mr Bayley. This is a factor indicative of some unfairness.

[31] Further, just as the Full Bench in UES (Int’l) took into account a failure to consult consistent with the relevant award provision, I have also taken into account the failure of Temples to fully consult consistent with the provisions of the Agreement. This includes written advice about the contract loss and its potential impact on Mr Bayley. I have accepted Mr Bayley’s advice that, in the discussions with Mr Patchett on 10 November 2015, clear possibilities associated with alternative employment or different roles were discussed on the basis that he could hold a reasonable expectation of some ongoing work. Consequently, Temples’ failure to fully explain to him why those opportunities were no longer available, and to confirm its position in writing, mitigate in favour of a finding of harshness, injustice or unreasonableness.

Conclusion regarding harsh, unjust or unreasonable

[32] I have concluded that the failure of Temples to comply with its Agreement obligations and to properly consult with Mr Bayley about redeployment opportunities is of such significance that I should regard his dismissal as harsh, unjust or unreasonable notwithstanding that dismissal occurred for a sound and defensible reason.

Remedy

[33] In these circumstances s.390 of the FW Act provides that a remedy may be awarded. The primary remedy is that of reinstatement. Reinstatement is clearly not feasible in these circumstances. There is no dispute that Temples no longer has the relevant waste water contract. I am not satisfied that, even if Mr Bayley sought reinstatement, work which he could undertake could be made available to him. Accordingly, I have considered the extent to which an amount of compensation in lieu of reinstatement should be made. The criteria to be taken into account in setting such an amount are set out in s.392 of the FW Act. In applying these criteria I have again adopted the approach set out in UES (Int’l).

Remuneration that would have been received (s.392(2)(c))

[34] Had Mr Bayley not been dismissed on 16 December 2015, I have concluded that his employment would have been terminated three weeks later following the requisite consultations with him. I consider that three weeks is appropriate because Mr Bayley’s work patterns involved limited capacity to work on alternate weeks, which I have concluded would then impact on his ability to be involved in discussions of this nature. Further, I consider that consideration and discussion over redeployment options at different sites may have taken some time.

[35] Notwithstanding this, I am not satisfied that those consultations would have changed the outcome in this matter. Accordingly, the remuneration Mr Bayley would have received or would have been likely to have received would have been an average of three weeks’ pay, plus any attendant superannuation obligations, at the rate applicable at the time of the termination of his employment. Ms Rumble’s evidence was that this was an hourly rate of $33.51. To calculate this average, I have taken into account the average hours worked by Mr Bayley, on a weekly basis over the previous four weeks. This gives an average of 28.5 hours each week.

Remuneration earned (s.392(2)(e))

[36] I am satisfied that Mr Bayley has not gained other employment, of any regular form, since the termination of his employment. I accept his evidence that he has only received unemployment benefits apart from limited casual work. I have not reduced the amount being considered pursuant to s.392(2)(c) on this basis.

Income reasonably likely to be earned (s.392(2)(f))

[37] I do not consider that any deduction should be made for any income likely to be earned pursuant to this factor.

Other matters (s.392(2)(g))

[38] There are no other matters I consider should be taken into account in the determination of an amount of compensation.

Viability (s.392(2)(a))

[39] I have concluded that there is no evidence that an order for three weeks’ pay plus the superannuation amounts payable to Mr Bayley for that period would affect the viability of the Temples’ business.

Mitigation efforts (s.392(2)(d))

[40] Mr Bayley advised that he had applied for some fifty jobs since the termination of his employment. I have concluded that his efforts to mitigate his losses do not give rise to the need to review the amount being contemplated.

Misconduct (s.392(3))

[41] The termination of Mr Bayley’s employment was not a consequence of his misconduct. Accordingly, I have not reduced the compensation amount being proposed.

Conclusion

[42] I have concluded that Mr Bayley should be paid an amount equating to three weeks’ pay at his average number of hours each week, calculated over the previous four weeks, plus any attendant superannuation obligations, as compensation for the termination of his employment. Excluding superannuation obligations, I have calculated this amount to be $2,865.11, less tax. An Order (PR582146) to this effect will be issued.

Appearances:

G Bayley on his own behalf.

G Rodgers of counselrepresenting the respondent.

Hearing details:

2016.

Adelaide:

June 16.

 1   Exhibit T4, attachment C

2 [2012] FWAFB 5241 (14 August 2012)

Printed by authority of the Commonwealth Government Printer

<Price code C, PR582145>