Harley Logan v Brunel Energy Pty Ltd

[2024] FWC 2600

[2024] FWC 2600

The attached document replaces the document previously issued with the above code on 30 September 2024.

1. Catchwords corrected

Associate to Deputy President Lake

Dated 1 October 2024

[2024] FWC 2600

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Harley Logan
v

Brunel Energy Pty Ltd

(U2024/3807)

DEPUTY PRESIDENT LAKE BRISBANE, 30 SEPTEMBER 2024

Application for an unfair dismissal remedy – jurisdictional objection – genuine redundancy – jurisdictional objection dismissed – matter to be determined on its merits.

1. Mr Harley Logan (the Applicant) made an application to the Fair Work Commission (the Commission) seeking a remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) stating that he was unfairly dismissed from his employment with Brunel Energy Pty Ltd on 14 April 2024 (the Respondent).

1. A conciliation was held on 24 May 2024 and the matter was not resolved. The matter was listed for a hearing on 1 July 2024 and 17 July 2024. The Applicant appeared self-represented, and the Respondent was represented by Mr Stephen Sasse, as Paid Agent from Alpheus Advisory Pty Ltd. I granted permission for the Respondent to be represented under s.596 of the Act.

1. Section 396 of the Act requires satisfaction of four matters before considering the merits. I am satisfied that the Applicant made his application within the 21-day period required by s.394(2) of the Act and earned less than the high-income threshold. The Respondent raised a jurisdictional objection that the Applicant was made genuinely redundant. The jurisdictional objection will be considered before determining the merits of the matter.

Is there a genuine redundancy under s.389(1) of the Act?

1. In Helensburgh Coal Pty Ltd v Bartley [2024] FCAFC 45, the Full Court of the Federal Court made it clear that if the factors of genuine redundancy are established, there is no unfair dismissal even if the redundancy has aspects of being harsh, unjust and unreasonable.

There can be little doubt that s 389 of the FW Act—and, more broadly, the significance of “genuine redundancy” to s 385(d)—was intended to narrow the circumstances in which an employee might be said to have been “unfairly dismissed”; and, thereby, to afford employers a defence in circumstances involving dismissals for operational reasons (as opposed to reasons of conduct or capacity). A dismissal that is a “case of genuine redundancy” is immune from relief under Pt 3‑2. That is so even if it might unambiguously qualify as “harsh, unjust or unreasonable”.[1]

1. Therefore, I consider whether the requirements of genuine redundancy are met regardless of whether it may be qualified as harsh, unjust or unreasonable. The requirements of genuine redundancy prescribed under s.389 of the Act are:

1.The role was no longer required to be performed by anyone because of operational requirements of the employer’s enterprise.[2]

2.Consultation if prescribed under Enterprise Agreement or applicable Award.[3]

3.Offer of redeployment if it was reasonable in all the circumstances[4]

1.     Did the Applicant’s employer no longer require the Applicant’s job to be performed by anyone because of operational requirements of the employer’s enterprise?

1. The Commission is not required to undertake an inquiry into the reasonableness of the changes in operational requirements. It just needs to be established.

A case of genuine redundancy may arise if a dismissal is the consequence of changes in the operational requirements of an employer’s enterprise. The FW Act does not contemplate any inquiry into the reasonableness of such changes, neither “in all [of] the circumstances” or at all. Subject to s 389(1)(b) and 389(2), any change in operational requirements will suffice.[5]

1. “Operational requirements” is a broad term which encompasses a broad range of factors which include factors such as the current performance of the business, the state of the market in which the business operates, steps to improve efficiency with new processes/equipment/skills, arranging labour to be used more productively or the application of good management to the business.

1. In Ulan Coal Mines Limited v Howarth and others [2010] FWAFB 3488 at [17], the Full Bench considered redundancy where the job as a collection of “functions, duties and responsibilities” becomes no longer required.

“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.

1. If there is no longer any function or duty to be performed by an employee, his or her position becomes redundant even where aspects of that employee’s duties are still being performed by other employees.[6] The consideration is whether the previous job has survived the restructure or downsizing, rather than a question as to whether the duties have survived in some form.[7]

1. I am not satisfied that the Applicant’s job was no longer required to be performed and therefore the Applicant’s redundancy cannot be classified as a genuine redundancy. The Applicant was a Recruitment Consultant specialising in IT Connectivity for the Respondent commencing 16 May 2023.

1. The Applicant was made redundant on 14 March 2024 on the basis that Connectivity was not seeing the growth the business would like over the past 6 months. The Applicant was not made aware of the growth requirements of the business before his redundancy.

1. Mr Andrew Mercer commenced with the Respondent on 4 March 2024 as a Permanent Recruitment Consultant (Connectivity). Mr Mercer was approached by the Respondent around August 2023, and was offered employment on 30 January 2024, but was not able to commence with the Respondent until 4 March 2024.[8]

1. When Mr Mercer was engaged with the Respondent on 4 March 2024, Mr Mercer and the Applicant were recruiting for Connectivity and the Applicant’s role was split to Recruitment Consultant (Connectivity) – Temp Scheme, while Mr Mercer’s role was Recruitment Consultant (Connectivity) – Perm Scheme.

1. Although I am satisfied that the Respondent had a downturn, I am not satisfied that there was a sufficient operational requirement to hire Mr Mercer given that Mr Mercer absorbed Mr Logan’s role upon his redundancy, which was originally the Applicant’s role to begin with. Furthermore, the short timeframe in which the Applicant was made redundant upon Mr Mercer starting with the Respondent in a highly similar role.

1. The Respondent is entitled to hire someone that they thought would be a better performer, but the reasons for redundancy were fabricated to hire Mr Mercer and terminate Mr Logan.  

1. The Applicant’s role is fully performed by Mr Mercer and therefore the collection of functions, duties and responsibilities was still required by the Respondent. The operational requirements were not made on a legitimate basis.

1. There was no operational requirement for the Respondent to make the Applicant’s role redundant.

1. Did the Respondent comply with any obligations in a modern award or enterprise agreement that applied to the employment to consult about redundancy?

1. The obligation on an employer to consult about redundancy only arises when a modern award or enterprise agreement applies to an employee and that modern award or enterprise agreement contains requirements to consult about redundancy. There is no legislative requirement to consult about the redundancy before a decision is made to make an employee redundant.

1. I am satisfied that there was no requirement for the Respondent to consult the Applicant regarding redundancy.

1. Was it 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?

1. In Helensburgh Coal Pty Ltd v Bartley [2024] FCAFC 45 at 66, the Full Court of the Federal Court of Australia notes:

“It is for the FWC, as a specialist statutory tribunal, to determine whether redeployment would have been reasonable in any given case. Within the wide bounds of what is legally reasonable, that assessment is to be made having regard to such matters as the FWC thinks are apt to assist it. If, in a given case, there is reason to think that an employer could have taken steps that would have enabled redeployment in preference to dismissal, that possibility may fairly be brought to bear upon the FWC’s assessment of what “would have been reasonable in all [of] the circumstances”.

1. In Helensburgh Coal Pty Ltd v Bartley [2021] FWCFB 2871 at [8], the Full Bench reaffirmed the rules of redeployment set out by Vice President Hatcher in Pettet and Ors v Mt Arthur Coal Pty Ltd [2015] FWC 2851 at [6] in relation to s.389(2) of the FW Act as follows:

“The principles concerning the interpretation and application of s.389(2) have been stated in two Full Bench decisions, Ulan Coal Mines Ltd v Honeysett and Technical and Further Education Commission t/a TAFE NSW v Pykett. Those principles were summarised in Huang v Forgacs Engineering Pty Limited as follows:

(1) The exclusion in s.389(2) poses a hypothetical question which must be answered by reference to all of the relevant circumstances.

(2) The question is concerned with circumstances which pertained at the time of the dismissal.

(3) In order to conclude that it would have been reasonable to redeploy the dismissed person, the Commission must find, on the balance of probabilities, that there was a job or a position  or  other work within  the  employer’s enterprise (or  that  of an  associated entity) to  which it would  have been reasonable in all the circumstances to redeploy the dismissed employee.

(4)  A number of matters are capable of being relevant in answering the question, including the nature of any available position, the qualifications required to perform the job, the employee’s skills, qualifications and experience, the location of the job and the remuneration which it offered.”

1. The Full Bench stated that the work to which an employee might be redeployed must, ultimately, be work over which the employer has control.[9] The Respondent stated they were undertaking a hiring freeze except hiring Mr Mercer. The Respondent did not have an alternate position available until the earliest resignation on 20 May 2024. I am satisfied that the Applicant could not have been redeployed given that his role was replaced by Mr Mercer and that there were no other roles available.

Conclusion

1. I am satisfied that the dismissal of the Applicant was not a genuine redundancy under s.389 of the Act and the Applicant is eligible to seek a remedy for unfair dismissal. The jurisdictional objection of genuine redundancy is dismissed. I will list the matter to be determined on the merits and remedy.

DEPUTY PRESIDENT

Appearances:

H. Logan appearing for himself as the Applicant.
S. Sasse appearing on behalf of the Respondent from

Hearing details:

1 July 2024 and 17 July 2024
Brisbane
Hearing via Microsoft Teams

[1] Helensburgh Coal Pty Ltd v Bartley and Anor [2024] FCAFC 45 at 55.

[2] Fair Work Act 2009 (Cth) s 389(1)(a).

[3] Ibid s389(1)(b)

[4] Ibid s389(2)(a)-(b).

[5] Ibid at 58.

[6] Jones v Department of Energy and Minerals [1995] IRCA 292 (16 June 1995), [(1995) 60 IR 304 at p. 308 (Ryan J)]; cited with approval in Ulan Coal Mines Limited v Howarth and others [2010] FWAFB 3488 (Boulton J, Drake SDP, McKenna C, 10 May 2010) at para. 17, [(2010) 196 IR 32].

[7] Kekeris v A. Hartrodt Australia Pty Ltd T/A a.hartrodt[2010] FWA 674.

[8] Statement of Natalie Morton 8.

[9] Helensburugh Coal Pty Ltd v Bartley and Anor [2021] FWCFB 2871 at [54].

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