Harmeek Vadhan v Night Owls Pty Ltd T/A Ferntree Print
[2015] FWC 636
•20 FEBRUARY 2015
| [2015] FWC 636 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Harmeek Vadhan
v
Night Owls Pty Ltd T/A Ferntree Print
(U2014/7936)
COMMISSIONER LEE | MELBOURNE, 20 FEBRUARY 2015 |
Application for relief from unfair dismissal - genuine redundancy - changes in operational requirements - application dismissed.
[1] This matter involves an application made to the Fair Work Commission (the Commission) pursuant to section 394 of the Fair Work Act 2009 (the Act) for unfair dismissal remedy. Mr Harmeek Vadhan (the Applicant) claims that he was unfairly dismissed from his employment with Night Owls Pty Ltd T/A Ferntree Print (the Respondent).
[2] The application was lodged 18 June 2014. The application was not made within the statutory time period and was listed for hearing before Commissioner Lewin for determination as to whether to extend the period for lodging the application pursuant to section 394(3) of the Act. Commissioner Lewin made a decision 1 and order2 granting the extension. Subsequently, the matter was allocated to me for jurisdiction and arbitration conference/hearing.
[3] The Applicant was represented by Mr. S. Mendis of counsel and the Respondent by Mr. B Charles of counsel. I granted permission to appear pursuant to section 596(2)(a) of the Act as I was satisfied that there was some complexity in the matter, involving questions as to whether the applicant was genuinely redundant, as asserted by the Respondent. Given the complexity, I considered that granting permission to appear would enable the matter to be dealt with more efficiently. The matter proceeded by way of a hearing.
[4] The hearing was conducted over three days in Melbourne, 19 November 2014 and 4 and 5 December 2014. Mr. B Poff, the managing director for the Respondent and Ms. Ayton, the office manager gave evidence on behalf of the Respondent. The Applicant gave evidence on his own behalf.
Background
[5] The Applicant began employment as a graphic pre-press worker with the Respondent on a full time basis on 10 September 2012, after he had obtained a diploma qualification relevant to the role. The Applicant is on a Temporary Work (Skilled) 457 Visa and the Respondent and the Applicant entered into a signed agreement specifying a payment of $53,352.00 per annum. in wages, plus superannuation.
[6] On 23 August 2013, the Respondent notified the Applicant of his dismissal on the basis of an alleged lack of performance. The Applicant lodged an application with the Commission alleging he was dismissed unfairly. Following a conference at the Commission, a settlement was negotiated and the Applicant was reinstated to the position in which he was employed immediately before the dismissal for “...a fixed term of 12 months commencing at 9.00am on 11 November 2013”. 3 The settlement provided for continuity of service to be recognised.
[7] It is apparent that allegations were made (as part of the unfair dismissal application made in 2013) that unauthorised deductions from wages were made by the Respondent from the Applicant. These allegations were again raised in this matter by the Applicant. I note that the settlement agreement includes a provision that is directed towards resolving that matter. In any case, the allegations do not have any bearing on the consideration as to whether or not there is a genuine redundancy in this matter.
[8] After being reinstated to his earlier position pursuant to the settlement agreement, the Applicant continued to work for the Respondent until 21May 2014. At that time, his employment was terminated by the Respondent. The Respondent claims that the job that the Applicant was performing is redundant and that was the basis of the termination on that date. The Applicant disputes that he has been made genuinely redundant and alleges that he has been unfairly dismissed.
The relevant provisions of the Act.
[9] Section 394(1) of the Act provides that a person who has been dismissed may apply to the Commission for an order under Division 4 of Part 2-3 of the Act granting a remedy for unfair dismissal.
[10] Section 385 of the Act provides that a person has been unfairly dismissed if the Commission 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.”
[11] Section 396 of the Act provides that, before considering the merits of an application for an unfair dismissal remedy order, the Commission must determine some other initial matters. Section 396 is as follows;
“396 Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.”
[13] Section 389 of the Act sets out the meaning of “genuine redundancy” and is 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.”
[14] Section 387 of the Act sets out the criteria for considering whether a dismissal was harsh, unjust or unreasonable. Section 387 is as follows:
“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.”
[15] With regard to s.385(a), s.386 of the Act sets out the meaning of ‘dismissed’. It is clear the Applicant was dismissed within the meaning of the Act.
[16] The Applicant was employed from 10 September 2012 until 21 May 2014. While there was a break in the employment as a result of the earlier dismissal referred to above, the settlement agreement recognised the period as continuous service. The business is a small business (as defined in s.23 of the Act). However, as the period of employment from 10 September 2012 to 21 May 2014 is continuous, the Applicant has completed a period of employment of at least the minimum employment period (sections 382(a) and sections 383). The application was not lodged within the time period specified in s.394(2)(a) however Commissioner Lewin has made an order granting an extension to the time pursuant to s. 394(3) of the Act .
[17] For reasons made clear later in the decision, I think it likely that the Applicant was covered by the Graphic Arts, Printing and Publishing Award 2010. However, even if I am wrong about that, at the time of the dismissal the Applicant was being paid $53,352.00 per annum, well below the high income threshold at the relevant time of $129,300.00. Hence the requirements of s.382(b) of the Act are met. The Applicant is a person protected from unfair dismissal.
[18] With regard to s.385(d) of the Act, it is clear that the Respondent has treated the Applicant’s dismissal as a case of genuine redundancy. The Applicant disputes that he was in fact made redundant. Section 385(d) of the Act is therefore relevant in this matter
[19] Accordingly, the matter for determination is whether the dismissal was a genuine redundancy. If I find that the dismissal was not a genuine redundancy, I must determine whether the dismissal was harsh, unjust or unreasonable.4
The evidence:
The restructure
[20] Mr. B Poff, Managing Director, gave evidence on behalf of the Respondent. In summary his evidence was as follows:
- He was the managing director of the Respondent.
- The Respondent employed 7 employees as at the 21 May 2014, the date of the dismissal of the Applicant.
- The Respondent had experienced a down turn in business. Various financial documents were tendered into evidence as attachments to Mr. Poff’s witness statement. 5 It was submitted that these documents evidenced a downturn in the business and that as a result of the downturn there was a need to restructure the business.
- Prior to May 2014, the Respondent employed 3 employees (including Mr. Poff) in the printing department of the business and that the duties for these employees included:
a. Pre-press- preparing files to make plates for the printing presses
b. Colour management trapping, imposition, printing proofs, emailing proofs
c Digital outputs
d Imaging Plates
e Printing on the digital presses
f Colour calibration of digital presses
g Outputting digital print runs.
[21] As a part of the restructure, Mr. Poff took on some duties additional to his role as Manging Director. The additional duties were those in a and b above; Pre-press- preparing files to make plates for the printing presses and Colour management trapping, imposition, printing proofs, emailing proofs.
[22] Ultimately, Mr. Poff determined that;
“…After an examination of the requirements of the Business, it was determined…that in the digital print department of the Business only one employee (other than myself) would be necessary to perform the duties required by the business.…the required duties of such an employee were likely to include the following only:
a. Digital Outputs from the file supplied-either from the client directly or from our graphic design department.” 6
[23] Written evidence relevant to a consideration of the position that the Applicant was employed in until his dismissal can be sourced from his initial employment contract dated 4 August 2012. 7 That contract described the position as “Graphic Pre-press Trades Worker”. The duties listed are as follows:
“ Operating plate-making equipment to reproduce images from film to printing plates, digital output devices and presses
- Operating computer screen-based equipment for scanning, colour separation, colour correction, masking, creative design, combining, imposing, retouching, and other processes used to transfer copy to film and - produce film from plate, digital output and cylinder productions
- Deploying film manually or by film processor
- Carrying out dot etching, retouching, planning, combining, colour correction, colour separation, stripping
- Carrying out digital and chemical proofing from digital system, and negative and positive films
- Printing proofs and evaluated printed proofs, checked and corrected them for quality
- Preparing and exposing carbon tissue for laying on cylinders by transfer method, and developing images
- Chrome-plates, polishing and coating cylinders with light sensitive coatings
- Producing film positives or negatives, or bromines, by contact printing
- Answering phones and creating quotes and/or job for client
- Producing all forms of print products - ranging from business cards to booklets and flyers”
[24] As detailed above, On 23 August 2013, the Respondent notified the Applicant of his dismissal on the basis of an alleged lack of performance. The settlement that was reached was tendered in the proceedings before me. 8 Relevantly, the settlement agreement included the following:
“3.1 The respondent will reinstate the applicant for a fixed term of 12 months commencing at 9am on 11 November 2013, by reappointing the Applicant to the position in which the applicant was employed immediately prior to the dismissal subject to the following further conditions….
3.1.5 The applicants’ duties will be mainly in pre-press and digital ouputs; he is to be the back-up for Vick Sharma and he is expected to fill Mr. Sharma’s role when Mr. Sharma is not available.”
[25] The evidence of Mr. Poff is that the restructure resulted in a job formerly performed by the Applicant, as well as the job being performed by Mr. Sharma, no longer being required. His evidence was that a new position was created that was different to that of the jobs performed by either Mr. Sharma or the Applicant. The job description for this new position was attached to Ms Samantha Ayton’s statement. 9 The job description for the new position is headed, “Digital Output/Finishing person Job Description”. That job description includes the following;
“DIGITAL OUTPUT OPERATOR
JOB DESCRIPTION
- operate existing digital machines
- learn and operate any new digital machines
- effectively print files supplied from client
- effectively print files created by Ferntree Print
- make small changes to file as required eg - add bleed, change margins etc
- pre flight all filed checking colour, resolution and accuracy, reporting back to your supervisor any problems prior to the file going to print
- ensure stick and paper grain and colour is correct for each project
- create schedules to effectively have more than 1 printing job going at the same time
- perform any maintenance on the machines and calibrate daily to ensure colour consistency
- follow systems in place for saving files
- update colour samples book for future reference
- keep track of stock requirements and advise your supervisor of stock required
- liase with the finishing department
FINISHING DEPARTMENT
JOB DESCRIPTION
- operate existing finishing equipment
- learn and operate any new finishing equipment
- assist in daily duties to ensure all jobs are completed in a timely manner
- quality check all printing prior to packing”
[26] For convenience, I will refer from here to the job the Applicant was performing at the time of the redundancy as the “Pre-press role” and the newly created job as described above as the “Digital Output Role”.
[27] Mr. Poff gave evidence at the hearing about the nature of the difference in the two roles. He described the “Pre-press role” duties of the Applicant as follows:
“Pre-press is preparing files for the offset presses that need plates to image the printing. We print, it’s imposition, how you set the pages up so they back up and we multiple-print on the same sheets. We maximise the efficiency of the paper usage. The files need to be colour-corrected. Sometimes they need to be trapped so the colours overlap and they don’t show white lines and they need to be imposed so that the job, like if a book, ends up with all the pages in the right order once it’s finished and, once it’s all ready, then the files get output to a plate that goes on the press that will chemically - water and oil doesn’t mix so it separates the image and then it transfers onto the paper. That’s called offset printing.” 10
[28] He also referred to the purchase of a software package that he claimed automated the process, making it a lot simpler and reducing the skill level and time required. 11 When asked to describe the differences between pre-press printing and digital printing Mr. Poff stated:
“Digital printing is quite a new thing and literally you take electronic file and it outputs on these large laser printers and it automatically - or it compensates for colour conversions and trapping and impositions - all done automatically on those digital machines so it’s quite simple and with offset of course we have to create the plates so that’s also now been automated plus the software we’ve got now has multiple consoles, again multiple uses and hot folders so you just drag and drop and it will step the business count of 20 up double side and then output them to the machine direct in one go.” 12
[29] His evidence on these matters remained consistent under cross examination and his evidence was clear and cogent. Essentially, Mr Poff’s evidence was that the pre-press role was initially undertaken by him and ultimately no longer required as a result of the introduction of new software that eliminated a number of steps required to be taken in pre-press.
[30] The Applicant submits that the digital output job is almost identical to his original job description and that the only differences were the wages and the title of the job; that his role was often limited to being an assistant to the other employee, Mr. Sharma and that he performed a significant portion of his work in the digital output department. 13
[31] In his witness statement, the Applicant stated:
“Prior to redundancy there were two people, Me and Mr. Vikas Sharma in the pre press department. I was responsible for digital output section of the pre-press and Vikas Sharma was in both CTP and digital printing in the pre-press.” 14
[32] Further the Applicant’s evidence is that he doesn’t believe he has been made genuinely redundant for a number of reasons including:
“(a) Prior to 14 April 2014 at 4:30 pm they never discussed about their financial situations.
(b) They never discussed that they hire the company “Employsure” to do redundancy process.
(c) I am on 457 visa and my circumstances are exceptional so to solve the matter Me and the Managing Director of the company Mr Poff were regularly talking on this matter, and as he said in the court that the company he hired “Employsure” is in Sydney and they will make the decision so all this process took time. I was assured by Mr Poff that I will get the job again and, he asked me to send the letter on 30 June 2012 at 6:58pm.
(d) They are pretending that Mr Poff will do the CTP whereas as a Managing Director he don’t have the time to do this work. They still need someone to do that job.
(e) Company hired someone on the same job which I performed.
(f) Its impossible to run the printing business without printing machines and for these kind of expensive machines company need pre-press person to run the job on that.”
[33] Importantly, the Applicant claims that “They are pretending that there is a change in the operational requirements of the employers’ enterprise whereas there is no change.” 15
[34] On cross examination, the Applicant was asked numerous times whether he agreed that the “Digital Output Role” was a different role to “Pre-press Role”. The exchange on cross examination was frustrating. Sometimes this was because the questions were not clear, but more often because the Applicant was evasive in his answers. Ultimately, the Applicants’ evidence was that “…digital is part of pre-press. So, you can’t say that this is pre-press and this is digital”. 16 In any case, the Applicant was consistent in his evidence that there was no difference between the two roles17 and he would not concede that some of the duties he performed in his pre-press role would no longer be required in the digital output role.18
Evidence on consultation and possible redeployment.
[35] I requested both parties to address me on whether the Applicant was covered by a modern award, in particular the Graphic Arts, Printing and Publishing Award 2010, at the relevant time. Counsel for the Respondent did not concede that the Applicant was covered by an award. 19 The Applicant submitted that the Graphic Arts, Printing and Publishing Award 2010 did apply to the Applicant.20
[36] There is little doubt, considering the evidence, that the Applicant was covered by the Graphic Arts, Printing and Publishing Award 2010. The coverage of that award is of “…employers…in the graphic arts, printing, publishing and associated industries and occupations and their employees in the classifications listed in clause 17”. 21 Clause 17 of the Graphic Arts, Printing and Publishing Award 2010sets out the wage rates and classification structure. Clause 17.2 states that the classifications set out in the table in clause 17 are to be read in conjunction with, among other things, Schedule C “Competencies”. Schedule C “Competencies” includes a list of competencies under the heading “Pre-press”. It is readily identifiable that a number of those competencies directly relate to the job description held by the Applicant, for example “Proof images”, “Produce offset lithographic plates”,and“Make gravure cylinders manually”. I note that “lithographic” is defined in the Graphic Arts, Printing and Publishing Award 2010 as, amongst other things, “offset printing”. The evidence of Mr. Poff is that this was the role of the Applicant.22
[37] The claim submitted by counsel for the Respondent that his client didn’t know if the Applicant was covered by the Graphic Arts, Printing and Publishing Award 2010 concerns me. Mr. Poff gave evidence he has been in this industry for 15 or 20 years. It is disturbing if Mr. Poff after this length of time in the industry is unaware of his obligations under relevant industrial awards. I strongly suggest to Mr. Poff that he make himself aware of his obligations under the Graphic Arts, Printing and Publishing Award 2010 or any other modern awards applicable to his business..
[38] Having found that the Graphic Arts, Printing and Publishing Award 2010 applies, the question is did the Respondent comply with the obligation to consult in the Graphic Arts, Printing and Publishing Award 2010about the redundancy? The obligation to consult in the Graphic Arts, Printing and Publishing Award 2010 can be found at clause 9. The relevant provision is at clause 9.1 and reads as follows;
“9.1 Consultation regarding major workplace change
(a) Employer to notify
(i) Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must notify the employees who may be affected by the proposed changes and their representatives, if any.
(ii) Significant effects include termination of employment; major changes in the composition, operation or size of the employer’s workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations; and the restructuring of jobs. Provided that where this award makes provision for alteration of any of these matters an alteration is deemed not to have significant effect.
(b) Employer to discuss change
(i) The employer must discuss with the employees affected and their representatives, if any, the introduction of the changes referred to in clause 9.1(a), the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees and must give prompt consideration to matters raised by the employees and/or their representatives in relation to the changes.
(ii) The discussions must commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in clause 9.1(a).
(iii) For the purposes of such discussion, the employer must provide in writing to the employees concerned and their representatives, if any, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees provided that no employer is required to disclose confidential information the disclosure of which would be contrary to the employer’s interests.”
[39] In any event, it is evident that the Respondent engaged in consultation with the two employees affected by the restructure. The relevant evidence is set out in the witness statement of Mr. Poff as follows;
“On 16 April 2014, I spoke to the employees of the Business who were likely to be affected by the restructure of the Business. Included in this discussion was Mr Harmeek Vadham (the Applicant). At this time I provided the affected employees with a letter inviting them to a discussion regarding the possible restructuring of the business (attached and marked ‘BP-13’).
On 17 April 2014, I had a meeting with the Applicant, also present at this meeting was Ms Samantha Ayton. During the meeting, I explained to the Applicant that as a result of the proposed restructure of the Business it was likely that his role would be made redundant.
Also during this meeting I offered the Applicant alternative employment within the Business in the role of a Digital Output finishing person (the Alternate Position) the Applicant refused the Alternate Position, and a conversation to the effect of the following took place.
“Harmeek: I can’t accept that role, my visa won’t let me.
Me: Ok, well could you consult your immigration advisor and get back to me?
Harmeek: Ok”.
On 29 April 2014, I provided the Applicant with a letter inviting him to a further meeting to discuss his role being made redundant (attached and marked ‘BP-4’).
On 30 April 2014 I had a meeting with the Applicant. Also present at this meeting was Ms Ayton. During this meeting I confirm that the Applicant’s role was being made redundant and again offered him employment in the Alternate Position subject to approval from his immigration consultant. At this time, a conversation to the effect of the following took place:
“Me: If you need to take some leave to sort out your visa, I’m happy for you to do that and you will still be paid.
Harmeek: I will take the job, I just won’t tell immigration.
Me: We can’t do that, that would be illegal. Please consult your immigration advisor and get back to me.
Harmeek: Ok”
On 2 May 2014, I handed the Applicant a letter (attached and marked ‘BP-15’) confirming that his employment had been made redundant and that his last day of work would be 21 May 2014. The letter also confirmed our discussions regarding the Alternate Position and advised him that he was still able to accept the Alternate Position provided he did so in writing before 21 May 2014.” 23
[40] Ms. Ayton gave evidence before me that she was at the meeting held on 14 April 2014; that she handed the letter (attachment SA1 and also BP13) to the Applicant on 16 April 2014; that she was at the 17 April 2014 meeting; that she handed a further letter to the applicant on 29 April 2014 (attachment SA3) and that she also attended the meetings on 30 April 2014 and on 19 May 2014. The evidence of Ms. Ayton is generally consistent with the evidence of Mr. Poff as to the consultation that occurred. Neither Mr. Poff nor Ms. Ayton were challenged on this aspect of their evidence.
[41] The Applicant did not disclose a great deal in his evidence in chief relating to the consultation process. He did state that prior to 14 April 2014 “…they never discussed about their financial situation”. 24 This is consistent with the evidence of Mr. Poff and Ms. Ayton that the first meeting to discuss the restructure was on 14 April 2014. On cross examination, the Applicant agreed that the Respondent took steps to redeploy him to another role but that this was very slow, with the talks taking place over 4 or 5 weeks. Again, this is broadly consistent with the evidence of Mr. Poff and Ms Ayton.
[42] Also clearly relevant is the evidence about the impact the visa requirements imposed on the Applicant and the impact that this had on the Applicant’s ability to accept the alternative digital output role. This exchange occurred under cross examination by Mr Charles;
“Sorry, I didn't hear you. Now, you went to your immigration agent because you were maintaining all along that you could not accept the offer in the digital output role because of the Visa requirements?---Yes, well the requirement is the money, so that was the main requirement.
Yes. So, you couldn't accept the job because of the Visa requirements and that's what you told Mr Poff?---I could accept, but he can't I think.
No?---He can't pay me less. But that also on the department, on the immigration department.
But that is the position. You were told by your immigration agent that you couldn't accept the job because of the Visa restrictions that applied?---Yes. He said that after two years when you send the paper to the department, they can object on that because he had his own 53.
So, you were given ample time, I say, to consider the offer that was made to you by Mr Poff in the digital output role. You had about five weeks to think about whether you would take it up or not?---Yes, during that five weeks we were talking about the money.
You were talking about the money?---Yes.
Okay. And you decided not to take up that offer of the alternate role in the digital output role?---No, I never refused.” 25
The law to be applied.
Job no longer required
[43] Consideration of the approach to be taken to determining whether the employer actually no longer requires the job to be done by anyone has been extensively dealt with in previous decisions.
[44] The onus is on the employer to prove that, on the balance of probabilities, the redundancy was due to changes in operational requirements. 26
[45] An employee may still be genuinely made redundant when there are aspects of the employee duties still being performed by other employees. 27
[46] In Kekeris v A. Hartrodt Australia Pty Ltd T/A a.hartrodt 28, Senior Deputy President Hamberger found:
“When one looks at the specific duties performed by the applicant prior to her termination they have much in common with those of the two positions in the new structure. The test is not however whether the duties survive. Paragraph 1548 of the Explanatory Memorandum makes clear that it can still be a ‘genuine redundancy’ where the duties of the previous job persist but are redistributed to other positions. The test is whether the job performed by the applicant still exists.” 29
[47] It should be noted it is the employees “job” that is no longer required to be performed, rather than the employees “duties”. 30
[48] The decision in Ulan Coal Mines Limited v Honeysett and others 31 dealt extensively with the redeployment obligations set out in s. 389(2) of the Act. The Full Bench in that matter stated as follows:
“[26] First, s.389(2) must be seen in its full context. It only applies when there has been a dismissal. An employee seeking a remedy for unfair dismissal cannot succeed if the dismissal was a genuine redundancy. In other words, if the dismissal is a case of genuine redundancy the employer has a complete defence to the application. Section 389(2) places a limitation on the employer’s capacity to mount such a defence. The defence is not available if it would have been reasonable to redeploy the employee. The exclusion poses a hypothetical question which must be answered by reference to all of the relevant circumstances.
...
[28] Thirdly, the question posed by s.389(2), whether redeployment would have been reasonable, is to be applied at the time of the dismissal. If an employee dismissed for redundancy obtains employment within an associated entity of the employer some time after the termination, that fact may be relevant in deciding whether redeployment would have been reasonable. But it is not determinative. The question remains whether redeployment within the employer’s enterprise or the enterprise of an associated entity would have been reasonable at the time of dismissal. In answering that question a number of matters are capable of being relevant. They include 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 in relation to the employee’s residence and the remuneration which is offered.
...
[34] 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.” 32
Consultation provisions
[49] The Explanatory Memorandum to the Fair Work Bill 2008 states the following in respect of the now s.389:
“Clause 389 – Meaning of genuine redundancy
1546. This clause sets out what will and will not constitute a genuine redundancy. If a dismissal is a genuine redundancy it will not be an unfair dismissal.
1547. Paragraph 389(1)(a) provides that 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, 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 employees;
- 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.
1549. It is intended that a dismissal will be a case of genuine redundancy even if the changes in the employer’s operational requirements relate only to a part of the employer’s enterprise, as this will still constitute a change to the employer’s enterprise.
1550. Paragraph 389(1)(b) provides that it will not be a case of genuine redundancy if an employer does not comply with any relevant obligation in a modern award or enterprise agreement to consult about the redundancy. This does not impose an absolute obligation on an employer to consult about the redundancy but requires the employer to fulfil obligations under an award or agreement if the dismissal is to be considered a genuine redundancy.
1551. Subclause 389(2) provides that dismissal is not a case of genuine redundancy if it would have been reasonable in all circumstances for the person to be redeployed within the employer’s enterprise, or within the enterprise of an associated entity of the employer (as defined in clause 12).
1552. There may be many reasons why it would not be reasonable for a person to be redeployed. For instance, the employer could be a small business employer where there is no opportunity for redeployment or there may be no positions available for which the employee has suitable qualifications or experience.
1553. Whether a dismissal is a genuine redundancy does not go to the process for selecting individual employees for redundancy. However, if the reason a person is selected for redundancy is one of the prohibited reasons covered by the general protections in Part 3-1 then the person will be able to bring an action under that Part in relation to the dismissal.” 33 [my emphasis]
[50] If an employer is obliged to consult and fails to do so there cannot be a genuine redundancy. 34
[51] Consultations should be meaningful and should be engaged in before an irreversible decision to terminate has been made. 35
[52] Consultation is not perfunctory advice on what is about to happen, consultation is providing the individual, or other relevant persons, with a bona fide opportunity to influence the decision maker. 36
Was the job of the applicant no longer required?
[53] The evidence of Mr. Poff was clear as to the changes that had occurred in the workplace that gave rise to the restructure and what occurred as a result of the restructure. The Applicant’s evidence was at times evasive. Where there is a conflict on the evidence, I prefer the evidence of Mr. Poff. It is clear on the evidence that the business was facing financial pressure. The attack on this evidence by counsel for the Applicant was poorly articulated and not supported by the evidence and his assertions that the financial material was “dodgy” had no basis in fact. I am satisfied that the Respondent has proven on the balance of probabilities that the redundancy was due to operational requirements.
[54] The evidence strongly supports a finding that the restructure led to an outcome where the position previously performed by the Applicant was no longer required to be done by anyone. The evidence as to what the “pre-press” job of the Applicant was can be gleaned from exhibit C4 in the proceedings, the employment contract for the job to which the Applicant was reinstated in 2013. The terms of settlement document make it clear it was this job to which he was reinstated, that he was doing pre-press and digital output duties, being the back up for Mr Sharma and that the Applicant was expected to fill Mr. Sharma’s role when he was not there.
[55] An examination of the positions descriptions for the two roles shows that they are quite different. The “pre press” job involved, for example, operating plate making equipment; developing film manually; preparing and exposing carbon tissue for laying on cylinders by transfer method, and developing images; chrome plates, polishing and coating cylinders with light sensitive coatings; producing film positives or negatives, or bromides, by contact printing. I can detect none of these requirements in the “digital output” job. I note there are references in the “pre-press” job description to digital output but this is not surprising as digital output was a part of the job that the Applicant was performing before the restructure.
[56] The variations in the job descriptions are consistent with the evidence of Mr. Poff as to the change in the operation towards digital output, the simplifying of the operation that occurs as part of that change and the related elimination of more complicated tasks. The majority of the pre-press functions are not evident in the digital output role having been removed through the combination of Mr. Poff taking them on and then ultimately through the introduction of technological change by way of the introduction of new software. It is clear that while components of the digital output job where a part of the Applicant’s previous role, it was not the same job. 37 The Applicants’ insistence that they are the same job is simply not supported by the evidence. I am satisfied that the Applicant’s job was redundant. The Applicant’ss job was no longer required to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise. I am satisfied that the Respondent has discharged the onus to prove that, on the balance of probabilities, the redundancy was due to changes in operational requirements.38
Was it reasonable in all the circumstances to redeploy the Applicant?
[57] In this case, the issue is whether it would have been reasonable in all the circumstances to redeploy the Applicant to the new position of digital output operator. The Respondent submits that it was not reasonable for the primary reason being that the Applicant could not be “placed” in the role as the Applicant had declined the position as the reduction in salary did not meet his visa requirements. 39
[58] I note that there was some debate as to whether the Applicant was offered the role or whether he had to apply for it. It is patently clear on the evidence that while he may at some point been asked to apply for the job, at a time when the Respondent thought that both he and Mr. Sharma might apply for it, ultimately, annexure BP15 clearly shows that they offered the Applicant the role of digital output operator, the letter stating “You are required to notify the Company in writing prior to 21st May 2014 if you would like to accept this offer of alternative employment”. 40
[59] The Applicant conceded that there were discussions over some weeks about redeployment but that he never refused the digital output role. The evidence of Ms. Ayton contradicts that claim. 41 I prefer the evidence of Ms. Ayton. It is clear that the Applicant was offered the role of digital output operator. He did not accept it. His reasons for not doing so were, on his own evidence, related to the difficulties with his visa requirements and the associated problem that the remuneration for the digital output position was lower.
[60] While I have some sympathy for the predicament of the Applicant in this regard, these are factors beyond the control of the Respondent. The Respondent clearly went to some lengths and held open the option of redeployment for some time to the Applicant. The Applicant was not compelled to accept the position and ultimately did not do so. However, the Respondent cannot force redeployment on the employee particularly in circumstances where the job has changed and the remuneration is lower. Against this background, it would not have been reasonable in all the circumstances to redeploy the Applicant to the new position of digital output operator.
Was there consultation that satisfied the award requirement?
[61] I am satisfied for the reasons disclosed earlier that the Graphic Arts, Printing and Publishing Award 2010 applied to the Applicant and consequently, the consultation provisions contained therein applied also.
[62] There is no doubt the restructure meets the definition of significant effects as it contemplated termination of employment, thus, the provisions of the award required the Respondent to notify employees of the proposed changes. The Respondent was also required to discuss change in a manner that complies with the requirements in 9.1(b)(i) and (ii) of the award.
[63] The uncontested evidence of Mr. Poff and Ms. Ayton referred to above demonstrates that they did notify the employees. There were discussions with employees about the changes and the effects the changes were likely to have. An opportunity was provided to the affected employees to make suggestions to avoid redundancies as well as redeployment. The uncontested evidenced of Ms. Ayton is that the only response from the employees was an expressed hope that business would pick up. Ultimately there were no matters raised to which the Respondent needed to give prompt consideration to. There is nothing in the evidence to suggest that the discussions with the employees did not commence as early as practicable after a definite decision had been made by the Respondent to make the changes. Finally, the evidence demonstrates that the Respondent provided, as they must, all relevant information about the changes in writing. While the Respondent professed to be ignorant of their award obligations, the evidence demonstrates that they nevertheless complied with the obligation under the award to consult with the Applicant.
Conclusion
[64] A persons dismissal is a case of genuine redundancy if the persons employer no longer required the persons job to be performed by anyone because of changes in the operational requirements of the employers enterprise. I am for the reasons set out above, satisfied that the Respondent has discharged the onus to prove that, on the balance of probabilities, the redundancy was due to changes in operational requirements. 42 It is clear that the Respondent no longer required the job to be done by anyone.
[65] There was a alternate position that was offered to the Applicant. That position entailed some components of his original position related to digital output and attracted a lower level of remuneration. The Applicant was offered that position and did not want that position for reasons primarily related to the lower remuneration and associated problems with his visa requirements. In those circumstances it was not reasonable in all the circumstances to redeploy him to that position.
[66] I have determined that the Graphic Arts, Printing and Publishing Award 2010 applied to the Applicant and that the Respondent complied with the consultation requirements.
[67] A genuine redundancy once found is a complete defence to the claim for unfair dismissal. Accordingly, the application for relief from unfair dismissal is dismissed. An order dismissing the application will be issued concurrently.
COMMISSIONER
Appearances:
S Mendis and S Bandara for the Applicant
B Charles for the Respondent
Hearing details:
2014.
Melbourne:
November 19;
December 4, 5.
1 PR553967
2 PR554878
3 Exhibit C7
4 Section 385(b) of the Act
5 Attachments BP1 through to BP12 of Exhibit C2
6 Witness Statement of Bernard Poff, dated 13 October 2014, [8]
7 Marked as Exhibit C4 in proceedings before me
8 Marked as Exhibit C7
9 Attachment SA2
10 PN1483
11 PN1490
12 PN1492
13 Applicant’s outline of submissions, filed 3 November 2014, [6]
14 Witness Statement of Harmeek Singh Vadhan, dated 6 November 2014, [18]
15 Witness Statement of Harmeek Singh Vadhan, dated 6 November 2014, [20]
16 PN1790
17 PN1798
18 PN1799
19 PN1892
20 PN2010-2011
21 Graphic Arts, Printing and Publishing Award 2010, cl4.1
22 PN1483
23 Witness Statement of Bernard Poff, dated 13 October 2014, [10] - [15]
24 Witness Statement of Harmeek Singh Vadhan, dated 6 November 2014, [18(a)]
25 PN1820-1826
26 Kieselbach v Amity Group Pty Ltd (unreported, AIRC, Hamilton DP, 9 October 2006) PR973864 [34] and Explanatory Memorandum, Fair Work Bill 2008 [1548]
27 Dibb v Commissioner of Taxation (2004) 136 FCR 388, 404-405
28 [2010] FWA 674
29 Kekeris v A. Hartrodt Australia Pty Ltd T/A a.hartrodt, [2010] FWA 674, [27]
30 Ulan Coal Mines Ltd v Howarth, (2010) 196 IR 32, [17]
31 [2010] FWAFB 7578
32 Ulan Coal Mines Limited v Honeysett and others, [2010] FWAFB 7578, [26], [28] and [34]
33 Explanatory Memorandum, Fair Work Bill 2008, [1546] - [1553],
34 See for example UES (Int’l) Pty Ltd v Harvey (2012) 215 IR 263
35 Construction, Forestry, Mining and Energy Union v Newcastle Wallsend Coal Company (1998) 88 IR 202
36 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Vodaphone Network Pty Ltd (unreported, AIRC, Smith C, 14 November 2001) PR911257
37 Kekeris v A. Hartrodt Australia Pty Ltd T/A a.hartrodt, [2010] FWA 674, and Explanatory Memorandum, Fair Work Bill 2008 [1548]
38 Kieselbach v Amity Group Pty Ltd (unreported, AIRC, Hamilton DP, 9 October 2006) PR973864 [34]
39 Respondent’s submissions, dated 3 November 2014, [21(a) and (b)]
40 Annexure BP15 to Witness Statement of B Poff, dated 13 October 2014
41 Witness Statement of S Ayton, dated 31 October 2014, [16]
42 Kieselbach v Amity Group Pty Ltd (unreported, AIRC, Hamilton DP, 9 October 2006) PR973864 [34]
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