Gourdeas v Heyday 5 Pty Limited

[2020] FWC 6132

[2020] FWC 6132

FAIR WORK COMMISSION

DECISION

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

Mr Peter Gourdeas
v
Heyday 5 Pty Limited
(U2020/6301)

DEPUTY PRESIDENT CROSS SYDNEY, 16 NOVEMBER 2020

Application for an unfair dismissal remedy.

BACKGROUND

[1] An application was filed on 7 May 2020 (the “Application”), by Mr Peter Gourdeas (the “Applicant”), pursuant to s.394 of the Fair Work Act 2009 (Cth) (the “Act”), following his dismissal on 17 April 2020. The Applicant seeks unfair dismissal remedies primarily of reinstatement, continuity of service and lost remuneration, or in the alternative compensation. In these proceedings the Applicant was represented by Mr Jacka of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the “CEPU”), and the Respondent was represented by Mr Jervis of the National Electrical Contractors Association.

[2] The Applicant commenced employment with the Respondent on 2 September 2019. The Applicant was terminated on the ground of redundancy on 17 April 2020. He was paid one weeks pay in lieu of notice.

[3] On 27 July 2020, directions were issued to program the manner in which the Application was to proceed to hearing (the “Directions”). The parties complied with the Directions. In particular:

(a) On 31 July 2020, the Applicant filed an Outline of Submissions (the “Applicant’s Submission”), and a statement of the Applicant dated 31 July 2020;

(b) On 21 August 2020, the Respondent filed an Outline of Submissions (the “Respondent’s Submission”), a statement of Mr Brett Lavorato, and a statement of Mr Chris Baker, both dated 20 August 2020;

(c) On 28 August 2020, the Applicant filed a reply statement from the Applicant dated that same date.

Background

[4] There were only minor factual disputes between the parties. Mr Baker’s statement was admitted into evidence without a requirement for him to be cross-examined. The Applicant and Mr Lavorato gave evidence at the hearing of the matter, and they each gave clear, considered and responsive evidence.

[5] As noted above, the Applicant commenced employment with the Respondent on 2 September 2019. Initially he worked as an Electrician on a project at Star Casino. Throughout his employment the Applicant was employed as an Electrical Worker Grade 5, being a Licensed Electrician. The Applicant had commenced his electrical apprenticeship in 2005, and had a total of 15 years as an Electrician in which he worked among various industries such as construction, fire, commissioning, rail, mining, residential, commercial and gas.

[6] The Respondent was established in 1978 and specialises in electrical contracting with a primary focus on commercial developments, public infrastructure, transport, defence and data centres

[7] While working at the Star Casino project, the Applicant was involved in several jobs which included the electrical tasks of cable installation work, termination of electrical distribution boards, installation of various lighting/power apparatuses and conduit work.

[8] On Tuesday 7 January 2020, the Applicant received a letter from the Respondent stating that he would be moved to the Wynyard Place Commercial Development project (the “Wynyard Project”) starting 8 January 2020. The Applicant explained that The Wynyard Project consists of two stages:

(a) A new 32 level building located above Wynyard station; and

(b) Stage two of the project being an old heritage building called the “Shell House”.

[9] On Saturday 11 April 2020 (Easter Saturday), the Applicant received an email from the Respondent’s payroll department which was as follows:

“From: Heydays Payroll <[email protected]>
Date: Sat, Apr 11, 2020 at 10:20 PM
Subject : Employee Assessments
To: [email protected] <[email protected]>

Please find attached your assessment .

You are required to sign the form and return it to your Project Manager or via email to [email protected] by no later than Wednesday 15th April 2020.

Kind Regards,

Heyday Payroll”

[10] The attached Employee assessment form (the “Employee Assessment”) was as follows:

[11] The Wynyard Project was shut down for the Easter Break from Thursday 9 April 2020 to Tuesday 14 April 2020. The Applicant returned to work on Wednesday 15 April 2020.

[12] On Wednesday 15 April 2020, the Applicant responded to the email of 11 April 2020, and disputed the employee assessment. No issues had ever been raised about the Applicant’s work performance prior to the assessment. In that email, the Applicant stated the following:

“To whom it may concern

I have recently received a review regarding my performance over the last 2 month period with Hayday5. This review identifies areas in which an employee" Exceeds, Meets or Does not meet" On-site performance. This review does not offer any further insight or offer further consultation opportunities with respects to areas that Heyday 5 management feel an employee lacks in . This review does not depict my on site capability accurately as well as slanders my capability as a licensed electrician of 13 years. To which I wish to express my concern and disagreement as I feel these results are an inaccurate reflection on my performance.

Firstly, I have not received any feedback prior to this review regarding these "Does not meet" areas. It would be expected that this would be communicated prior in order for myself to improve and meet my role expectation as well as to ensure on site productivity. I would require clarification and more specific detail regarding the areas that I allegedly do not meet.

Secondly, at no point have management requested to have a discussion with myself with respect to onsite performance through my time of employment with Heydays

If you could please provide further feedback and an opportunity to have a discussion regarding this review as I did not have any prior knowledge of these underperforming areas, nor do I feel this is a valid or fair depiction of my character.

Therefore I will not be signing this review at this point, as I do not agree with the assessment of my performance or character and would request further discussion to understand these performance issues.

Please contact myself at your earliest convenience.

Regards
Peter Gourdeas.”

[13] On Friday 17 April 2020, the Applicant was performing electrical work on the Wynyard Project. Without notice he was requested to attend a meeting on site with Chris Baker, Project Manager and Daniel Vuk, Foreman. During that meeting I accept that words to the following effect were said:

Mr Baker: Due to a downturn in work we are going to have to let you go.

The Applicant: Downturn in work? There is three years’ work here. How can you sack people?

Mr Baker: It just a downturn in work. There is not enough work for everyone.

The Applicant: You are bringing other people from jobsites there is plenty of work here.

Mr Baker: It is what it is. You can finish up today and take your tools.

The Applicant: This is not on. Alright no worries.

[14] Following the above meeting, the Applicant spoke separately with Mr Vuk. During that meeting I accept, particularly in the absence of Mr Vuk, who at the time of the hearing remained an employee of the Respondent 1, being called to give evidence, that words to the following effect were said:

The Applicant: Is this because of the assessments?

Mr Vuk: Yes it is.

The Applicant. Alright no worries then.

[15] On 20 April 2020, the Respondent became eligible for the Commonwealth Government’s JobKeeper subsidy. In his cross-examination, Mr Lavorato gave the following evidence regarding JobKeeper: 2

“Did Heyday end up after that day of 20 April putting employees on JobKeeper?---Yes, we did.

Had Mr Gourdeas not been dismissed on 17 April, would he have been put on JobKeeper?---I'm unsure of the entitlement requirements on each individual.  Potentially, yes.”

[16] The Applicant disputed the validity of his redundancy. He based his assertions in that regard on the following:

(a) A conversation he had with an un-named foreman two or three weeks before his termination where he was told the Respondent was going to transfer 100 employees to the Wynyard Project because there was plenty of work. He noted that at the same time as his dismissal, 20 to 30 employees from other sites that were finishing up were transferred to the Wynyard Project and given jobs/duties that the Applicant was doing;

(b) His observations since his dismissal when he has walked past the Wynyard Project. He says he observed there was plenty of work and apparently new Electricians working on the Project;

(c) His review of the Respondent’s website, which lists a number of projects still not completed that require electrical work: and

(d) That at the time of dismissal, a Labour Hire company called Next Gen were engaged on the Wynyard Project to install cable for the Respondent. That was work that the Applicant could have done.

[17] Due to the significant impacts of the COVID 19 pandemic the Respondent had a number of positions that were no longer required. In his statement Mr Lavorato gave detailed evidence, which I accept, regarding the dates and numbers of position reductions. Those reductions ,which were across all projects of the Respondent, were as follows:

(a) Between November 2019 and 9 April 2020, the Respondent returned:

(i) 128 labour hire employees back to their employers; and

(ii) 35 Group Training apprentices back to their Group Training Organisations.

(b) In the first round of redundancies, which occurred on 17 April 2020, being the round in which Mr. Gourdeas was dismissed, the Respondent determined that it needed to make the following positions redundant:

(i) 8 x Electrical Workers Grade 5 (Licensed Electricians);

(ii) 4 xElectrical Workers Grade 4A (Unlicensed Electrician); and

(iii) 1 x Electrical Worker Grade TA (Trades Assistant).

(c) The second round of redundancies took place on 28 April 2020, whereby the Respondent made the following positions redundant:

(i) 1 x Foreman;

(ii) 1 x Electrical Worker Grade 5 (Licensed Electrician); and

(iii) 1 x Electrical Worker Grade 4A (Unlicensed Electrician).

(d) The third round of redundancies took place on 8 May 2020, whereby the Respondent made the following positions redundant:

(i) 1 x Electrical Worker Grade 5 - Leading Hand; and

(ii) 3 x Electrical Workers Grade 5 (Licensed Electrician).

(e) The fourth round of redundancies took place on 15 May 2020, whereby the Respondent made the following positions redundant:

(i) 1 x Electrical Worker Grade 5 - Leading Hand; and

(ii) 2 x Electrical Workers Grade 5 (Licensed Electrician).

(f) The fifth round of redundancies took place on 29 May 2020, whereby the Respondent made the following positions redundant:

(i) 1 x Project Manager;

(ii) 3 x Electrical Workers Grade 5 (Licensed Electrician); and

(iii) 2 x Electrical Workers Grade 4A (Unlicensed Electrician).

(g) The sixth round of redundancies took place on 22, 23 and 24 June 2020, whereby the Respondent made the following positions redundant:

(i) 1 x Electrical Worker Grade 5 - Leading Hand; and

(ii) 18 x Electrical Workers Grade 5 (Licensed Electrician); and

(iii) 5 x Electrical Workers Grade 4A (Unlicensed Electrician); and

(iv) 1 x Electrical Worker Grade TA (Trades Assistant).

(h) Additionally, on 15 and 30 July 2020 respectively a further two (2) redundancies took place, which were:

(i) 1 x Electrical Worker Grade TA (Trades Assistant); and

(ii) 1 x Electrical Estimator.

[18] When the Applicant was made redundant in April 2020, there were 47 employees of the Respondent working on the Wynyard Project. As at 20 August 2020, there were 89 employees of the Respondent working on the Wynyard Project, though that number was expected to reduce from late October 2020.

[19] On 10 September 2020, a Form 52 Order for Production (the “Order for Production”) was issued at the request of the Applicant that included the following documents (the reference to plural Applicants being due to the existence of another applicant whose matter did not proceed to hearing):

1. Any document or copies of documents including but not limited to any file note of meetings, statements, emails or memorandums, or recordings, in relation to the Respondent’s decision to terminate the Applicants’ employment.

2. Any document or copies of documents including but not limited to any file note of meetings, statements, emails or memorandums, or recordings, in relation to the Respondent’s decision to make the Applicants’ roles redundant.

3. Any document or copies of documents including but not limited to any file note of meetings, statements, emails or memorandums, or recordings, in relation to the Respondent’s selection process to make the Applicants’ roles redundant and retrench the Applicants.

4. Any document or copies of documents including but not limited to any file note of meetings, statements, emails or memorandums, or recordings, in relation to the steps taken by the Respondent to redeploy the Applicants.

…

[20] No documents were produced in response to the above Form 52 order for production.

CONSIDERATION

Preliminary findings

[21] The only jurisdictional objection to the Applicant’sapplicationbeing determined by the Commission related to whether his dismissal was a case of genuine redundancy (s.389). Otherwise, I am satisfied that:

(a) The Applicant was dismissed at the initiative of the employer (ss 385(a) 386(1)(a));

(b) His unfair dismissal application was lodged within the 21 day statutory time limitation found at s 394(2) of the Act;

(c) The Applicant is a person protected from unfair dismissal in that:

i. he had completed the minimum employment period set out in ss 382 and 383 of the Act, being a period of seven and a half months; and

ii. an enterprise agreement, the Heyday5 Pty Ltd & ETU Sydney Construction Enterprise Agreement 2019 (the “Agreement”), applied to his employment (s 382(3)(b)(ii)); and

(d) His dismissal was not a case involving the Small Business Fair Dismissal Code, as the respondent employs around 4500 employees (s 385(c)).

Genuine Redundancy?

[22] Section389 of the Act provides:

“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.”

[23] Clause 64 of the Agreement is titled “Consultation Term”. It provides as follows in its prelude, and the provision as it relates to “Major Change”:

64 CONSULTATION TERM

a) This term applies if the Company:

1. has made a definite decision to introduce a major change to production, program, organisation, structure or technology in relation to its enterprise that is likely to have a significant effect on the employees; or

2. proposes to introduce a change to the regular roster or ordinary hours of work of employees.

64.1 Major change

a) For a major change referred to in paragraph 64 (a) (1):

i. the Company must notify the relevant employees of the decision to introduce the major change; and

ii. sub-clauses 64.1 (b) to (i) apply.

b) The relevant employees may appoint a representative for the purposes of the procedures in this term.

c) If:

i. a relevant employee appoints, or relevant employees appoint, a representative for the purposes of consultation; and

ii. the employee or employees advise the Company of the identity of the representative; the Company must recognise the representative.

d) As soon as practicable after making its decision, the Company must discuss with the relevant employees:

•  the introduction of the change; and

•  the effect the change is likely to have on the employees;

•  the measures the Company is taking to avert or mitigate the adverse effect of the change on the employees; and

e) 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

iii. any other matters likely to affect the employees.

f) However, the Company is not required to disclose confidential or commercially sensitive information to the relevant employees.

g) The Company must give prompt and genuine consideration to matters raised about the major change by the relevant employees.

h) If a term in this agreement provides for a major change to production, program, organisation, structure or technology in relation to the enterprise of the Company, the requirements set out in paragraph 64.1 (a) (i) and sub-clauses 64.1 (b) and (d) are taken not to apply.

i) In this term, a major change is likely to have a significant effect on employees if it results in:

i. the termination of the employment of employees; or

ii. major change to the composition, operation or size of the Company's workforce or to the skills required of employees; or

iii. the elimination or diminution of job opportunities (including opportunities for promotion or tenure); or

iv. the alteration of hours of work; or

v. the need to retrain employees; or

vi. the need to relocate employees

[24] It is apparent that there are three relevant considerations arising from s.389. They are:

(a) Does the person’s job no longer exist;

(b) Was there consultation about the redundancy; and

(c) Was it reasonable in the circumstances to redeploy the person.

(a) Did the Applicant’s Job no Longer Exist?

The Applicant submitted that the Applicants job continued to exist. He noted the evidence that the Wynyard Project consists of two stages, being:

(a) Electrical work was being performed on Stage 1 by Electricians employed by the Respondent and by the subcontractors NextGen who were engaged to install cables; and

(b) Electrical work on stage 2 (the Shell House) which was only in the early stages.

Both stages involved work that could have been performed by the Applicant when he was dismissed and after his dismissal.

[25] The Respondent submitted that at the time of the Applicant’s dismissal, the Respondent was experiencing excessive trade resources on the Wynyard Project and needed to cut down employee numbers. Accordingly, it proceeded to make the Applicant, together with six other employees that were based on the Wynyard Project, redundant. There were further redundancies made on other projects.

[26] In Ulan Coal Mines Ltd v Howarth 3, a Full Bench of the Commission considered the

meaning of the term “the person’s employer no longer required the person’s job to be performed by anyone” in section 389(1)(a) of the Act. In paying particular attention to the Explanatory Memorandum, the Full Bench observed:

“Explanatory Memorandum to the Fair Work Bill 2008 provides examples as to when a dismissal will be a case of genuine redundancy.

1547 Paragraph 389(1)(a) provides that a person’s dismissal will be a case of

genuine redundancy if his or her job was no longer required to be performed by

anyone because of changes in the operational requirements of the employer’s

enterprise. Enterprise is defined in clause 12 to mean a business, activity, project

or undertaking.

1548 The following are possible examples of a change in the operational

requirements of an enterprise:

•  A machine is now available to do the job performed by the employee;

•  The employer’s business is experiencing a downturn and therefore the employer only needs three people to do a particular task or duty instead of five; or

•  The employer is restructuring their business to improve efficiency and the tasks done by a particular employee are distributed between several other employees and therefore the person’s job no longer exists.

It is noted that the reference in the statutory expression is to a person’s “job” no longer being required to be performed. As Ryan J observed in Jones v Department of Energy and Minerals (1995) 60 IR 304 a job involves “a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employees’ organisation, to a particular employee” (at p. 308). His Honour in that case considered a set of circumstances where an employer might rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly-created positions. In these circumstances, it was said that:

“What is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the re-organisation, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position becomes redundant…” (at p.308)

This does not mean that if any aspect of the employee’s duties is still to be performed by somebody, he or she cannot be redundant (see Dibb v Commissioner of Taxation (2004) FCR 388 at 404-405). The examples given in the Explanatory Memorandum illustrate circumstances where tasks and duties of a particular employee continue to be performed by other employees but nevertheless the “job” of that employee no longer exists.”

[27] As noted above, I accepted the detailed evidence of Mr Lavorato regarding the dates and numbers of position reductions across all projects of the Respondent. It is abundantly clear that the Respondent, like much of the Australian economy in April 2020, was experiencing a significant downturn and therefore only needed a reduced number of employees to perform the tasks associated with the work of Electrical Workers Grade 5 4. Subject to my conclusion below regarding consultation, having chosen the Applicant as one employees not included in the reduced number of employees required, the Applicant’s job no longer existed.

(b) Was there Consultation about the Redundancy

[28] It is readily apparent that the provisions of Clause 64.1 have their genesis in the Termination, Change and Redundancy Test Case (the TCR Case) 5. In considering other provisions similarly based on the TCR case, in Maswan v Escada 6 (“Maswan”), Vice President Watson found as follows:

“These provisions are of long standing, emanating from the Termination, Change and Redundancy test case in the early 1980s and from time to time have been reflected in legislation. The requirement to discuss proposed changes and consult about the changes has been held to require meaningful consultation and not merely an afterthought. Consultation after an irrevocable decision has been made has been held to not amount to meaningful consultation.

[20] As Sachs LJ observed in Sinfield v London Transport Executive [1970] [at 558]:

"Consultations can be of very real value in enabling points of view to be put forward which can be met by modifications of a scheme and sometimes even by its withdrawal. I start accordingly from the viewpoint that any right to be consulted is something that is indeed valuable and should be implemented by giving those who have the right an opportunity to be heard at the formative stage of proposals - before the mind of the executive becomes unduly fixed."”

(Emphasis added. Footnotes omitted.)

[29] Having made a definite decision to introduce major change, the Respondent was required to meet its obligations to consult. That included:

(a) Pursuant to Clause 64.1 (a), the requirement to notify the relevant employees of the decision;

(b) Pursuant to Clause 64.1 (d), the requirement to discuss the introduction of change, the likely effects on employees, and measures to mitigate or avert those adverse effects;

(c) Pursuant to Clause 64.1(e), providing in writing all relevant information about the change, information about the expected effects in employees and any other matters likely to affect the employees; and

(d) Pursuant to Clause 64.1(g), giving prompt and genuine consideration to matters raised by employees.

[30] The Respondent submitted, quite extraordinarily in light of the evidence of the conversations that occurred on 17 April 2020, that it had broadly complied with the consultation obligations contained in the Agreement. The Respondent referenced two decisions in support of its submission, being the decision of Commissioner Cambridge in Carling v Dawson Coal Anglo Services Pty Ltd  7(“Carling”) and the decision of Commissioner Foggo in Tyszka v Sun Health Foods Pty Ltd 8 (“Tyszka”).

[31] In Carling, the relevant facts regarding consultation were outlined as follows:

“[6] The employer operates the Dawson Coal Mine (the Mine), located near the town of Moura at the southern end of the Bowen Basin in central Queensland.

[7] The Mine experienced an operational loss of $86m for the 2013 financial year. The employer undertook a review of the Mine operation which was aimed to improve profitability. As a consequence of this review, in November 2013, the employer made a decision to implement a restructure of the Mine’s operation which involved a reduction of the Mine’s 1500 workforce by about 200 people. 

[8] The applicant was one of five Maintenance Supervisors who were made redundant as part of the restructure of the Mine implemented in November 2013. The restructure resulted in the loss of about 17 staff roles, being positions not covered by industrial Awards or Agreements, together with approximately 180 operator positions. The role performed by the applicant as a Maintenance Supervisor was one of the staff positions which were made redundant.

[9] On 4 November 2013, all staff including the applicant attended a presentation given by the General Manager of the Mine. This presentation included advice to employees about the restructure and the decision to make certain staff and operator positions redundant. Later on 4 November, the applicant attended a meeting with HR personnel and he was advised that he was one of the five Maintenance Supervisors who had been selected for redundancy.

[10] The applicant was provided with a letter dated 4 November 2013, which confirmed the verbal advice of his redundancy and gave information about the process that was to commence regarding identification of any redeployment opportunities. The applicant was provided with a list of job vacancies which covered the entirety of the Australian operations of the employer’s parent Company, the Anglo American group.

[11] Over the following few days, the employer and the applicant discussed a number of potential redeployment opportunities. The employer identified only one position which it believed suited the skills and qualifications held by the applicant. The position was for a diesel fitter and represented something akin to a demotion from the Maintenance Supervisor role performed by the applicant. The alternative diesel fitter position was at a non-residential mine site. The applicant considered the alternative position and rejected it as he considered it to be an unsuitable redeployment option. No other redeployment options were identified.

[12] Consequently, the employer provided the applicant with a letter dated 8 November 2013, which confirmed the termination of his employment on the basis of redundancy and the inability to confirm any redeployment opportunity. The applicant was paid accrued entitlements which, including a redundancy payment, totalled $60,056.14.”

[32] The complaint advanced by the Applicant in Carling was in being one of the five individual Maintenance Supervisors selected for redundancy, and Commissioner Cambridge noted that the selection process used was not relevant to the question of genuine redundancy. 9

[33] In Tyszka, some of the relevant facts regarding consultation that were accepted by Commissioner Foggo were as follows:

“[31] In 6 August 2009 the company contacted Ms Mary Churcher the AMWU organiser to consult with her over the downturn in orders and advised of the company’s intention to meet all staff on 7 August 2009. That meeting with staff proceeded and the staff was advised by Mr Andrianopolous and Mr Stoter of the week on/week off arrangement to be on a temporary basis, the serious financial situation and that the situation would be reviewed in two weeks.

[32] Between 7 August 2009 and 11 September 2009 the Respondent met or spoke with the union through Ms Churcher on ‘at least four occasions.’ The details of those meetings and those people involved were detailed by the company. 12 The Respondent submitted it advised the union was advised on 10 September 2009 that the company had no option other than to make 16 positions redundant and Ms Churcher was invited to attend a meeting on 11 September 2009 with management prior to the meeting with staff later on the same morning.

[33] Ms Churcher was present at the meeting between the managers and staff at which time they were told that the 16 redundancies were to occur effective that day and she also attended each of the individual meetings at which time employees were advised whether or not they were being made redundant. The Respondent is adamant that the union was informed that the employees to be made redundant were selected on the basis of the skills and competencies matrix.

[34] In relation to specific circumstances relevant to the consultation which occurred with Mrs Tyszka regarding the downturn in the company’s work and the redundancies, Mr Stoter gave considerable evidence. He was aware that the Applicant was absent on leave during the meetings with staff which had been conducted on 7 August and 21 August 2009 and asked Ms Verma to advise the Applicant of the serious financial position of the employer.”

[34] The failures in compliance with the consultation in Tyszka related to the provision of relevant information regarding the nature of the changes proposed not having been put in writing to the employees or to the union in accordance with clause 26(iii), and the absence of discussions with the Applicant regarding redeployment to suitable alternative positions. 10

[35] In the matter at hand, the Respondent made the following submission:

39. The Applicants were notified of the decision to make them redundant as soon as practicable.

40. On 17 April 2020, the Respondent held a discussion with each of the Applicants regarding the downturn in work as a result of a number of projects finishing and COVID-19 crisis.

41. In summary, the Respondent discussed the introduction of the change and the effect that the change would have had on the Applicants. This was done by explaining that the Applicants’ positions were being made redundant.

42. The Applicants did not appoint a representative, nor did they request one.

43. There were no measures that the Respondent could take to mitigate the adverse effect of the change.

44. The Respondent gave the Applicants information in writing about the change, being the Notification of Termination of Redundancy dated 17 April 2020.

[36] Every one of the alleged steps in alleged compliance with the consultation obligation occurred in either the meeting of 17 April 2020 where, without notice, the Applicant was terminated, or in the pre-prepared letter handed to the Applicant in that brief meeting. Those facts stand in stark contrast with those in Carling and Tyszka where each respective employer took numerous steps to comply with the consultation obligations.

[37] The Respondent’s claimed consultation steps, occurring as they did after an irrevocable decision had been made to terminate the Applicant, could never constitute meaningful consultation. I further do not consider that on 17 April 2020, those steps were undertaken as an attempt at satisfaction of the Respondent’s consultation obligations. They have simply been subsequently seized upon in a flawed attempt to assert compliance with the consultation obligation where no such consultation occurred.

[38] The Respondent advanced an alternative submission that “… even if consultation in strict compliance with the Agreement had of occurred, the Respondent would still have made the Applicants redundant. Consultation would not have changed the circumstances of the Respondent”. Reliance was placed on the decision of Maswan, in which Vice President Watson found: 11:

“In my view 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. Here the decision appears open to the employer to make. The failure to consult is not a trivial matter. But as it is clear that consultation was highly unlikely to have negated the operational reasons for the dismissal or lead to any other substantive change, I do not believe that the failure to consult prior to the date of termination rendered the dismissal unfair. Given the evidence in relation to the operational need to restructure, I am of the view that it is likely that Mr Maswan would have been dismissed in any event, even if timely consultation had occurred.”

[39] It must be observed that in the above passage, Vice President Watson was not dealing with the question of genuine redundancy. Rather, he was considering “other matters” pursuant to s.387(h) that may affect the determination of whether a dismissal is harsh, unjust or unreasonable. The majority in a subsequent Full Bench in UES (Int’l) Pty Ltd v Harvey 12 , found that s.387(a) of the Act regarding the matter of whether there was a valid reason for the dismissal related to the person’s capacity or conduct did not go to the process for selecting the person for redundancy. It found:

“The terms of s.389 of the FW Act suggest the process for selecting individual employees for redundancy is not relevant to whether a dismissal was a case of genuine redundancy. The relevant Explanatory Memorandum confirms as much. Setting aside jurisdictional pre-requisites and the matters in s.396(a) to (c), FWA only needs to consider s.387(a) concerning whether there was a valid reason for a person’s dismissal related to the person’s capacity or conduct if one or more of the criteria in s.389 of the FW Act, which sets out the meaning of genuine redundancy, have not been met. The criteria in s.389 which have not been met can be taken into account in FWA’s consideration as to whether the dismissal was harsh, unjust or unreasonable as part of s.387(h), being “any other matters that FWA considers relevant”.”

[40] The circumstances in Maswan, were quite different to the circumstances in this matter. In Maswan, the resignation of the Company’sRegional Manager, prompted a further review of the Company’s Australian operations by the regional executives in Hong Kong. They determined to advertise for a new role of Brand Manager to be responsible for managing both the Australian Wholesale and Retail Business. Ultimately this led to Mr Maswan’s role as Retail/Marketing Manager becoming redundant. The Regional Manager had been responsible for managing the wholesale role with a salary range of $120-135,000pa. Mr Maswan’s Retail/Marketing Manager role had a salary of $65,000pa. The new role was established with a salary range of $87-90,000pa. The role specifically filled by Mr Maswan was the role made redundant.

[41] In this matter, the Applicant was chosen from a larger group of Electrical Workers Grade 5, Licensed Electricians, to be one of six such employees made redundant on 17 April 2020. In his statement, Mr Lavorato had said that the Employee Assessment had nothing to do with the decision redundant. In the hearing, Mr Lavorato stated that employees were selected for redundancy based on a selection criteria of “Ability, effort and time of service” 13. The final position of Mr Lavorato regarding the Employee Assessment, which I accept was correct, was reached in the following exchange in cross-examination:14:

So isn't it the case that the reason you selected Mr Gourdeas in the first round is because of his performance assessment?---Not because - efforts, ability and time of service, yes.

But ability was one of the factors that you took into account in selecting him for redundancy in that first round?---Yes.

The ability or your assessment of his ability arose from that performance assessment didn't it?---Yes.

[42] Mr Lavorato confirmed that earlier in the week ending Friday 17 April 2020, he, in conjunction with “the project managers” had all the employee assessments on a spreadsheet file that they reviewed along with considerations of service time with the Respondent. Mr Lavorato confirmed there would be written records of such decisions, however no documents were produced in response to the Notice for Production.

[43] It is clear that the Employee Assessment was relied upon in selecting the Applicant for Redundancy, and that the Applicant’s response of Wednesday 15 April 2020 to the Employee Assessment wherein the Applicant sought consultation, was simply ignored. That, however, is a consideration addressed pursuant to s.387(h).

(c) Was it reasonable in the circumstances to redeploy the person.

[44] In Ulan Coal Mines Limited v Honeysett & Ors  15, the Full Bench found as follows in relation to deployment pursuant to s.389(2):

“It may be appropriate to make some concluding remarks about the operation of s.389(2). It is an essential part of the concept of redeployment under s.389(2)(a) that a redundant employee be placed in another job in the employer’s enterprise as an alternative to termination of employment. Of course the job must be suitable, in the sense that the employee should have the skills and competence required to perform it to the required standard either immediately or with a reasonable period of retraining. Other considerations may be relevant such as the location of the job and the remuneration attaching to it. Where an employer decides that, rather than fill a vacancy by redeploying an employee into a suitable job in its own enterprise, it will advertise the vacancy and require the employee to compete with other applicants, it might subsequently be found that the resulting dismissal is not a case of genuine redundancy. This is because it would have been reasonable to redeploy the employee into the vacancy. In such a case the exception in s.385(d) would not apply and the dismissed employee would have the opportunity to have their application for a remedy heard. The outcome of that application would depend upon a number of other considerations.

Where an employer is part of a group of associated entities which are all subject to overall managerial control by one member of the group, similar considerations are relevant. This seems to us to be a necessary implication arising from the terms of s.389(2)(b). While each case will depend on what would have been reasonable in the circumstances, subjecting a redundant employee to a competitive process for an advertised vacancy in an associated entity may lead to the conclusion that the employee was not genuinely redundant.”

[45] The Applicant submitted that the Applicant could have carried out other work on the Wynyard Project, or other projects of the Respondent. I reject that submission. The evidence of the downturn suffered by the Respondent was clear. While a Labour Hire company called Next Gen was engaged on the Wynyard Project to install cable for the Respondent, and the Applicant could have performed that work, the Respondent had previously contracted that work to Next Gen and could not be expected to breach that contract.

Was the Dismissal Harsh, Unjust or Unreasonable?

[46] Having concluded that the dismissal was not a genuine redundancy, I must consider the question of whether the Applicant’s dismissal was ‘harsh, unjust or unreasonable’ and therefore an unfair dismissal, pursuant to the considerations outlined in s.387 of the Act. dealing with the matters to be taken into account by the Commission in determining whether the dismissal was unfair.

[47] Section 387 of the Act identifies the matters that the Commission must take into account in deciding whether a dismissal was “harsh, unjust or unreasonable”:

(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.

(a) Valid reason

[48] As observed above, s.387(a) of the Act regarding the matter of whether there was a valid reason for the dismissal related to the person’s capacity or conduct does not go to the process for selecting the person for redundancy. The reasons for the dismissal of the Applicant by the Respondent were not related to his capacity or conduct (including its effect on the safety and welfare of other employees). In the circumstances of this case, it is a neutral matter with respect to the consideration of whether the Applicant’s dismissal was harsh, unjust or unreasonable.

(b) Notification

[49] The Applicant was notified of the of the reasons for termination by the letter dated 17 April 2020.

(c) Opportunity to Respond

[50] Section 387(c) is predicated on there being a reason for dismissal related to the capacity or conduct of the employee. It follows that s 387(c) is a neutral factor in relation to the question of whether the Applicant’s dismissal was harsh, unjust or unreasonable.

(d) Support person

[51] The Applicant did not request to have a support person, though that is very likely explained by the fact that he was not aware of any meeting occurring. Nonetheless, as no request was made I consider this a neutral consideration.

(e) Warnings

[52] The Applicant’s actual dismissal related to redundancy, and not to his unsatisfactory performance, so this matter is not relevant to my consideration as to whether the Applicant’s dismissal was harsh, unjust or unreasonable.

(f/g) Size of the business/human resources

[53] These are not relevant considerations as the Respondent is a relatively large company and is well resourced.

(h) Other relevant matters

[54] There were sound, defensible and well-founded reasons for Mr Gourdeas’ dismissal, relating to the downturn in business suffered by the Respondent, and it was not reasonable in all the circumstances to relevantly redeploy him. Those are matters telling against a conclusion that the dismissal was harsh, unjust or unreasonable.

[55] The Respondent, however, failed to consult with the Applicant as required by the Agreement that applied to his employment. In the circumstances the failure to so consult was unreasonable. The consequences of that failure were exacerbated by the Respondent’s reliance on the Employee Assessment.

[56] Had the consultation occurred, as required by the Agreement in relation to the major change that was occurring, the Applicant would have also been able to address what he considered the erroneous reliance upon the Employee Assessment. The Applicant had already attempted to address the Employee Assessment in writing, and would certainly have agitated his position further.

[57] I do not accept the Respondent’s submission that the dismissal would have occurred nonetheless. It is entirely possible that if proper consultation occurred, the Applicant may not have been dismissed. His selection to be one of the six made redundant was based on the Employee Assessment. He may have been successful in convincing the Respondent that the Employee Assessment was partially or wholly erroneous. As to whether such a result was probable cannot be determined due to complete failure of the Respondent to comply with the Notice to Produce.

[58] Further, I am satisfied that a consultation period between the Applicant and the Respondent would at the very least have continued until the Monday following the Friday 17 April 2020 meeting, when the Respondent became eligible for the Commonwealth Government’s JobKeeper subsidy. That could have resulted in a different outcome for the Applicant.

[59] I regard the failure to consult and the reliance on the Employee Assessment as matters relevant to the conclusion that the Applicant’s dismissal was harsh, unjust or unreasonable.

Conclusion on Dismissal

[60] Taking into account the matters referred to above, the dismissal of the Applicant was harsh unjust or unreasonable. While the Respondent had a valid reason to reduce its workforce, and it was dealing with the very difficult business environment in March/April 2020, the Respondent’s failure to comply with its consultation obligations in relation to the Applicant meant that the Applicant was denied the opportunity to secure a different outcome, and was denied the opportunity of being supported by the JobKeeper program. I will therefore consider remedy.

Remedy

(a) Reinstatement

[61] The Applicant seeks the primary remedy of reinstatement. However, in light of the significant downturn in business suffered by the Respondent, I am satisfied that the reinstatement of the Applicant is inappropriate. That is particularly so where the dismissal was brought about by a redundancy.

[62] I note that there has in fact been an increase in employee numbers at the Wynyard Project site from 47 employees on 17 April 2020,to 89 employees on 20 August 2020, however I accept Mr Lavarato’s evidence that the number of employees is expected to reduce from late October 2020

(b) Compensation

[63] The criteria relevant to the deciding of the amount of compensation are set out in s.392(2). That section provides:

“Criteria for deciding amounts

(2) 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

(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.”

I address below those criteria in the customary order of consideration. 16

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

[64] The Respondent submits the remuneration that would have been received by the Applicant had he not been dismissed would be negligible as the Applicant was made redundant. I am of the view that the remuneration the Applicant would have received, or would have been likely to receive, if he had not been dismissed would have been another three weeks’ remuneration. Three weeks is the period it would have taken the Respondent to comply with its obligations in the Agreement to consult with the Applicant about the redundancy that led to his dismissal, and address the Applicants issues with the Employee Assessment. Three weeks’ remuneration for the Applicant was an amount of $5,987.76 gross plus superannuation.

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

[65] The only remuneration earned by the Applicant since his dismissal was his one weeks notice. I do not deduct that from the amount ordered as the Applicant would have received such notice in any event after appropriate consultation.
.

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

[66] I make no deduction for any amount of income reasonably likely to be so earned by the Applicant. The three weeks following his dismissal does not extend to the period referred to in s.392(2)(f).

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

[67] There are no other matters that I consider relevant to take into account in the determination of an amount of compensation in lieu of reinstatement for the Applicant, part from those in ss.392(2)(a), (b) and (d), s.392(3) and s.395(5) of the FW Act to which we next refer.

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

[68] No submission was made on behalf of the Respondent that any particular amount of compensation would affect the viability of the Respondent’s enterprise. Accordingly, no adjustment will be made on this account.

.

(vi) Length of service (s.392(2)(b))

[69] The Applicant had only seven and a half months service with the Respondent. Such a period of service does not justify any adjustment to the amount of compensation.

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

[70] I accept that the Applicant has made reasonable efforts to mitigate the loss suffered by him because of his dismissal. His mitigation efforts do not provide a basis for reducing the amount of compensation.

(viii) Misconduct (s.392(3))

[71] Misconduct did not contribute to the Respondent’s decision to dismiss the Applicant. As a result, I do not reduce the amount of compensation on this ground.

(xi) Compensation cap (s.392(5))

[72] The amount of $5,987.76 gross plus superannuation.is less than the compensation cap in s.392(5) of the FW Act for the Applicant.

Conclusion as to Remedy

[73] I am satisfied an order for the payment of compensation of $5,987.76 gross plus superannuation, less taxation as required by law, by the Respondent to the Applicant in lieu of reinstatement is appropriate in all the circumstances of the case. It accords a fair go all round to both the Respondent to the Applicant. An order to this effect is attached.

DEPUTY PRESIDENT

Appearances:

Mr A Jacka (ETU), for the Applicant

Mr G Jervis (National Electrical Contractors Association), for the Respondent

Hearing details:

2020
Sydney
15 September

Printed by authority of the Commonwealth Government Printer

<PR724578>

 1   Transcript PN 577

 2   Transcript at PN 565 and 566.

 3   [2010] FWAFB 3488 at [16] and [17].

 4   See Transcript PN 415.

 5 (1984) 8 IR 34; (1984) 9 IR 115.

 6   [2011] FWA 4239, at [19] and [20].

 7   [2014] FWC 5320.

 8   [2010] FWA 1781,at [61] to [64].

 9   Carling at [35].

 10   Tyszka at [61] and [62].

 11   [2011] FWA 4239, at [39]

 12   [20012] FWAFB 5241, at [26] and [27].

 13   Transcript PN 505.

 14   Transcript PN516 to 518.

 15   [2010] FWAFB 7578 at [34] and [35].

 16   Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21.