Glenn Amos v John Beever (Aust.) Pty Limited

[2020] FWC 5945

[2020] FWC 5945

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Glenn Amos
v
John Beever (Aust.) Pty Limited
(U2020/10998)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 9 NOVEMBER 2020

Application for an unfair dismissal remedy – whether genuine redundancy – jurisdictional objection upheld – application dismissed.

Introduction

[1] Mr Glenn Amos (Applicant) was dismissed from his employment with John Beever (Aust.) Pty Limited (Respondent) on 24 July 2020 on redundancy grounds. He subsequently lodged an application pursuant to s 394 of the Fair Work Act 2009 (Cth) (Act) for an unfair dismissal remedy. The Respondent contends that the Applicant’s dismissal was a case of genuine redundancy within the meaning of s 389 of the Act with the consequence that he has not been unfairly dismissed.

Consideration

[2] Section 389 of the Act sets out the meaning of “genuine redundancy” as follows:

“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.”

[3] The Applicant does not contest that the elements of a genuine redundancy in s 389(1) have been satisfied. 1 However, the Applicant contends the Respondent has failed to meet what is required for the Respondent to discharge its redeployment obligation. More particularly, he contends that it would have been reasonable, in all the circumstances, for the Applicant to be redeployed in the Respondent’s enterprise.

[4] The Respondent is a mechanical engineering company providing construction, maintenance and industrial services across several industries, including manufacturing, resources and infrastructure. 2 The Applicant had been employed by the Respondent since March 2006.3 In or around February 2020, the Applicant had returned to Victoria from a posting to Gladstone, Queensland.4 On his return, the Applicant was deployed to a construction project conducted by the Respondent at a new cement work plant in Geelong to be operated by Boral Cement Ltd (Boral).5

[5] In or about November 2019, the Respondent was awarded the Stage 1 package of works by Boral to deliver the mechanical and structural steel erection work package for Boral’s new cement plant in Geelong, Victoria. 6 The awarded works involved the assembly of all the equipment, structural steel and materials handling plant that constitutes the Grinding Mill that is part of the overall cement plant.7 The work on the plant grew to involve three stages, each subject to a competitive tender.8 Stage 1 concerned the assembly of the Grinding Mill, including its structure and associated mechanical installation.9 Stage 2 involves the Finished Product Silos and Stage 3 involves the Clinker Storage Mechanicals.10

[6] Stage 2 was awarded to the Respondent on 1 July 2020. 11 The Respondent also tendered for Stage 3, which was awarded in or around 3 August 2020.12 The result was unexpected because until that time, including during the period when the Respondent decided to dismiss the Applicant on redundancy grounds, Boral had specifically communicated to the Respondent that the Stage 3 package of works was likely to be awarded to one of the Respondent’s competitors.13 Stages 1 and 2 are in various stages of completion.14 Stage 3 is due to finish in November 2020.15 It is anticipated that all of the Respondent’s work for Boral will be completed by December 2020.16

[7] None of the Boral work packages require workshop support for fabrication or pre assembly as all the component parts have been imported from overseas based suppliers. 17

[8] At Boral’s request as a response to the COVID-19 pandemic and its effect on Boral’s business, from 1 April 2020, the Respondent reduced the size of its workforce located at Boral from 62 to a maximum of 40 by ceasing to engage all of the casual employees at the plant and reducing the working week from six to four days. 18 The award of Stage 2 resulted in an increased working week to five days but the size of the workforce remained at 40 employees.19

[9] As earlier noted in discussions with Boral during July 2020, the Respondent had been informed that it would not be awarded Stage 3 because of price. During this period of time, the Respondent was also experiencing a downturn in its work at various of its projects, 20 with the consequence that a number of permanent employees would be returning from the jobs that were finished or finishing.21 In the result the Respondent determined that it had to adjust its direct and indirect manning levels to the amount of work available.22

[10] The Respondent decided to reduce its workforce by seven across its whole business, not just at the Boral plant. 23 The Respondent undertook a redundancy selection process to determine a core crew of approximately 40 employees, with the most appropriate skills base for how it proposed to conduct its core business and the work available and likely available.24

[11] The Applicant was one of the seven employees whose positions were selected for redundancy and his employment was brought to end by reason of redundancy on 24 July 2020.

[12] As earlier noted, the Applicant does not contest that his employer, the Respondent, no longer required the Applicant’s position to be performed by anyone because of changes in the operational requirements of the Respondent. On the evidence I am satisfied that that is the case. 25 The Applicant also accepts that the Respondent complied with its obligations to consult under the applicable industrial instrument. On the evidence I am satisfied that this is also the case.26

[13] I turn then to the issue of redeployment. The Applicant’s dismissal will not have been a case of genuine redundancy if it would have been reasonable in all the circumstances for the Applicant to be redeployed within the Respondent’s enterprise or the enterprise of an associated entity of the Respondent. It is not contended that it would have been reasonable to redeploy the Applicant within an enterprise of an associated entity of the Respondent. That leaves redeployment within the Respondent’s enterprise. Subsection 389(2) places no obligation on an employer to redeploy, or to do everything possible to achieve a redeployment outcome. 27 The exception is applied at the time of dismissal.28 It operates so that a dismissal that would otherwise be a case of genuine redundancy under s 389(1) will not be so if it would have been reasonable in all the circumstances for the person to be redeployed within, relevantly, the employer’s enterprise.

[14] As the Full Bench observed in TAFE NSW v Pykett, 29 to show that it would have been reasonable for the Respondent to redeploy the Applicant, it is not necessary to identify a particular job or position in which the Applicant could have been redeployed. However, the Commission must be satisfied on the balance of probabilities, and based on the evidence, that there was a ‘job or a position or other work’ to which it would have been reasonable to redeploy the Applicant.

[15] The Applicant’s contention that it would have been reasonable to redeploy him amounts to the following.

[16] The Applicant says first that he had knowledge of a permanent employee (Mr Michael Mannisto) of the Respondent then based at the Boral plant briefly backfilling a vacancy at the NuFarm site. 30 Although not expressly stated, the Applicant seems to suggest that he should have also been so treated or that he should have be so treated in preference to Mr Mannisto. Mr Ray McCann, an Executive Manager of the Respondent, gave the following evidence about this issue:

➣  NuFarm is a regular client of the Respondent requiring a small number of maintenance workers on site for maintenance fitting and pipework;

➣  The Respondent has a core group of three employees permanently based at NuFarm. When work arises for which NuFarm needs additional resources, the Respondent will typically top up that core group with either casual employees, or permanent employees, subject to the needs of the client and the availability of the employees;

➣  As at 24 July 2020, the Applicant was identified as one of seven employees surplus to requirements having regard to the work then being performed by the Respondent and the lack of likely future work and he was not one of the core employees that the Respondent decided to retain having regard to his experience, qualifications and skills in construction work;

➣  The Respondent also ended the casual engagement of a Mr Grioli, a C10 Tradesman at NuFarm, and decided to move Mr Mannisto, who was also a C10 Tradesman, to NuFarm in his place on 27 July 2020. The Respondent took these steps because, as there was insufficient workload at the Boral plant, understanding at that time that Stage 3 was to be awarded to a competitor, the Respondent wished to ensure that Mr Mannisto as a permanent employee was provided with work and given priority over Mr Grioli, as a casual employee. Mr Mannisto had also previously worked at NuFarm, he was known to and well regarded by the client, he was familiar with the plant there, was a C10 Tradesman like Mr Grioli and had been inducted onto that site;

➣  When on 3 August 2020, the Respondent was surprisingly awarded Stage 3 works, Mr Mannisto was subsequently (on 10 August 2020) returned to the Boral site. Mr Grioli was re-engaged by the Respondent on a casual basis as a C10 Tradesman at NuFarm from 11 August 2020, at the specific request of NuFarm. 31

[17] Mr Mannisto’s temporary relocation to NuFarm was an appropriate step for the Respondent to have undertaken at the time. At the time of the Applicant’s dismissal, the step had not been taken but in any event, it is clear on the evidence Mr Mannisto was assessed as falling within the Respondent’s core ongoing workforce requirements and the Applicant was not. There is no real quarrel with that assessment. That Mr Mannisto was temporarily relocated in preference or otherwise to the Applicant, was in the circumstances reasonable. It follows on this basis that it would not have been reasonable in all the circumstances to redeploy the Applicant into that position, job or duties.

[18] The rehiring of Mr Grioli as a casual employee from 11 August 2020 is beside the point and occurred in the circumstances describe above. These were not the circumstances that pertained at the time of the Applicant’s dismissal. Nor was it known to the Respondent at that time, that the circumstances might in the near future.

[19]The Applicant secondly contends that at this time, there was a casual employee (Mr Michael Vasic) of the Respondent doing machining work at the Respondent’s workshop. 32 He says that these casual spots (including that of Mr Grioli, with which I have already dealt) were potential redeployment options for the Applicant and were not properly or sufficiently examined by the Respondent as redeployment opportunities.

[20] As to this, Mr McCann gave evidence that:

➣  work in the workshop is performed on a sporadic basis and as at 24 July 2020, one of the Respondent’s two casual employees, Mr Vasic, was finishing a small, set job which he completed on 25 July 2020;

➣  As a casual employee, Mr Vasic was engaged to perform work on an “as needed” casual basis. He was not a permanent employee and generally works less than full time hours over the course of an engagement;

➣  After completing the job, Mr Vasic finished up and did not perform any work for the Respondent again until when he was brought back to do so on 4 August 2020 as needed for sporadic short-term jobs. Mr Vasic is classified as a C10 employee and the Respondent would not have replaced him with a C9 employee (the Applicant’s classification) for work of a short duration. 33

[21] None of this evidence is seriously challenged and I accept it. The explanation given by Mr McCann establishes that it would not have been reasonable in all the circumstances to redeploy the Applicant into this position, job or duties.

[22] Thirdly, the Applicant says that the Respondent has several casual fitters and riggers placed at the IXOM chlorine plant at Laverton, in Victoria, since July 2020. As to this Mr McCann said:

➣  IXOM is a chemical plant requiring maintenance work from the Respondent on an irregular basis;

➣  At the time of the Applicant’s dismissal, there were no vacancies at IXOM and there were no employees of the Respondent engaged at IXOM;

➣  Moreover, the Applicant is asthmatic and because of the chlorine environment at IXOM he would not be suitable for this work and had not been suitable for it in the past. 34

[23] Again, none of this is seriously challenged and I am satisfied that it would not have been reasonable in all the circumstances to redeploy the Applicant to any position, job or duties at IXOM

[24] Finally, as to the suggestion by the Applicant that the Respondent should have considered leave or held onto the Applicant’s employment as a bridge to the work that later became available at the Boral plant, that is a contention made with the benefit of hindsight. At the date of the Applicant’s dismissal not only was the prospect of the Respondent winning further work at the Boral plant not known to it, all of the feedback that it had received indicated that the Respondent would not be awarded Stage 3 works. Those were the circumstances, together with the general downturn in activity earlier discussed which are relevant to the decision the Respondent made and the redeployment options that were available. It would not have been reasonable in the circumstances to have held onto the Applicant’s employment as a bridge to future anticipated work, because none of it was anticipated at the time. It would have been a bridge to nowhere and the Respondent cannot reasonably be expected to prolong employment in a redundant position on the basis of nothing more than a hope that work in the near future might materialize.

[25] For all of the reasons set out above I am comfortably satisfied that the Applicant’s dismissal was a case of genuine redundancy because as at 24 July 2020:

(a) the Respondent no longer required the Applicant’s job to be performed by anyone because of changes in the operational requirements of its enterprise;

(b) it has complied with its obligation in the applicable industrial instrument that applied to the employment of the Applicant to consult about the redundancy;

(c) it would not have been reasonable in all the circumstances for the Applicant to be redeployed within the Respondent’s enterprise or the enterprise of an associated entity of the Respondent.

Conclusion

[26] The Applicant’s dismissal by the Respondent on 24 July 2020 was a case of genuine redundancy within the meaning s 389 of the Act. Consequently, he has not been unfairly dismissed.

Order

[27] The application is dismissed

DEPUTY PRESIDENT

Appearances:

B Terzic on behalf of the Applicant
S Amendola on behalf of the Respondent

Hearing details:

2020
Melbourne (via video)
22 October

Written submissions:

Applicant, 9 October 2020
Respondent, 25 September 2020 and 19 October 2020

Printed by authority of the Commonwealth Government Printer

<PR724321>

 1   Applicant’s outline of submission at [5]

 2   Exhibit 2 at [6]

 3   Exhibit 6 at [4]

 4   Ibid at [10]

 5   Ibid

 6   Exhibit 2 at [9]

 7   Ibid at [10]

 8   Ibid at [12]

 9   Ibid

 10   Ibid

 11   Ibid at [13]

 12   Ibid at [14]

 13   Ibid

 14   Ibid at [16]

 15   Ibid

 16   Ibid

 17   Ibid at [17]

 18   Ibid at [18]; exhibit 4 at [7]; transcript PN73, PN77, PN167

 19   Ibid at [19]

 20   Ibid at [20]-[21]

 21   Ibid at [22]

 22   Ibid

 23   Ibid at [23]

 24   Ibid at [24]

 25   Ibid at [6]-[22]; exhibit 3 at [3]-[12]

 26   Exhibit 4 at [11]-[21]; exhibit 6 at [16]-[18]; exhibit 7 at [12]-[18]

 27   Hallam v Sodexo Remote Sites Australia Pty Ltd [2017] FWCFB 6847 at [20]

 28   Ulan Coal Mines Ltd v Honeysett [2010] FWAFB 7578 at [28]; TAFE NSW v Pykett[2014] FWCFB 714, (2014) 240 IR 130 at [35]

 29   [2014] FWCFB 714, (2014) 240 IR 130 at [36]

 30   Exhibit 6 at [20]; Exhibit 7 at [19]-[20]

 31   Exhibit 3 at [17]-[22]

 32   Exhibit 6 at [20]

 33   Exhibit 3 at [23]-[28]

 34   Ibid at [29]-[32]