Huw Ambrosio v Hybrid AG Pty Ltd
[2025] FWC 266
•26 FEBRUARY 2025
| [2025] FWC 266 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Huw Ambrosio
v
Hybrid AG Pty Ltd
(U2024/11915)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 26 FEBRUARY 2025 |
Application for an unfair dismissal remedy
Mr Huw Ambrosio has made an unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act). The Respondent to this application is Hybrid AG Pty Ltd (the Respondent). The application was the subject of a determinative conference at which the parties were self-represented and witness evidence was received from Mr Ambrosio and Mr Amos Rowe (Director/General Manager for the Respondent).
Initial matters to be considered – s.396 of the Act
The application was made within the prescribed 21-day period after the dismissal took effect (s.396(a) of the Act). In addition, there is no dispute that Mr Ambrosio is a person protected from unfair dismissal because he completed the applicable minimum employment period, was covered by the Clerks – Private Sector Award (2020) (the Award)[1] and had an annual rate of earnings that was less than the high-income threshold (s.396(b)). Further, I am satisfied (and it was not in dispute) that the Respondent was not a small business employer, such that the question of whether the dismissal was consistent with the Small Business Fair Dismissal Code (s.396(c)) does not fall for determination. The Respondent objected to Mr Ambrosio’s application on the basis that Mr Ambrosio’s dismissal was a case of genuine redundancy. Section 396 of the Act requires that I decide this matter before considering the merits of Mr Ambrosio’s application.
Section 396(d)) requires engaging with s.389 of the Act, which provides:
“(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.”
Clause 38 of the Award imposed an obligation on the Respondent to consult about the redundancy. In particular, clause 38.1 of the Award required that if the Respondent had made a definite decision to make major changes in organisation or structure that were likely to have significant effects on Mr Ambrosio, such as the termination of his employment, it was required to give him notice of the changes, discuss them with him and commence such discussions as soon as practicable after a definite decision had been made. Further, clause 38.2 required the Respondent to give Mr Ambrosio, in writing, all relevant information about the changes, including their nature, their expected effect on him and any other matters likely to affect him. There was ultimately no dispute that the Respondent did not comply with this obligation imposed by clause 38.2 of the Award. This being the case, Mr Ambrosio’s dismissal was not a case of genuine redundancy as defined by s.389 of the Act.
The consequence of this finding is that s.385 of the Act comes into focus and I must proceed to consider the merits of Mr Ambrosio’s application. Section 385 provides:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c)the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”
On the basis of the material and evidence before me, it is clear Mr Ambrosio was dismissed (s.385(a)) and that this is not a matter that involves a small business and the consequent consideration of whether the dismissal of Mr Ambrosio was consistent with the Small Business Fair Dismissal Code (s.385(c)). As I am satisfied Mr Ambrosio’s dismissal was not a case of genuine redundancy as defined by s.389 of the Act (s.385(d)), this leaves only s.385(b) to consider. In determining whether Mr Ambrosio’s dismissal was harsh, unjust or unreasonable, and therefore unfair, I am required to give consideration to s.387 of the Act.
In this case, the reason for the dismissal given by the Respondent was redundancy. In this regard, no relevant finding can be made in relation to whether the purported redundancy constituted a “valid reason for the dismissal related to the person’s capacity or conduct” (s.387(a)) and for its part, the Respondent did not assert that there was any valid reason for dismissal related to Mr Ambrosio’s capacity or conduct. The Respondent’s reliance on redundancy as the reason for dismissal requires consideration in connection with s.387(h), “any other matters the Commission considers relevant.” This is dealt with below. So too are the contentions of Mr Ambrosio regarding consultation and the consideration of redeployment as a response to the redundancy.
However, regardless of the Respondent’s purported reason for Mr Ambrosio’s dismissal and contentions in support, s.387(a) of the Act requires the Commission to decide for itself whether there were circumstances that constituted a valid reason to terminate the employment.
Documents filed by Mr Ambrosio during the proceeding in support of his application included copies of two payslips issued by the Respondent in respect of two individuals. The payslips outlined the quantum of wages paid to both for a particular week and their year-to-date earnings. This prompted the Respondent to submit:
“… we have grave concerns regarding the Applicant’s possession of company confidential information which he has no right to nor should have had access to.
The Applicant has submitted, in his document evidence, payslips of company employees which is in breach of his employment contract and a violation of privacy of these employees.
How the Applicant came into possession of this confidential information is a matter of a very serious nature.”[2]
Mr Ambrosio’s explanation for having had the payslips was that Mr Jamie Cousins, the then Operations Manager for the Respondent, was interested in reducing costs and as such, he had raised with Mr Cousins some invoices the Respondent had been receiving from its Chief Operating Officer (Mr Paul Bigley). Mr Ambrosio considered the invoices suggested that Mr Bigley’s wife was invoicing the Respondent for administration work. Mr Ambrosio said that in response, Mr Cousins indicated that he was familiar with this. Mr Ambrosio said that he subsequently discovered the payslips in question on the Respondent’s share drive, to which he had access, on either 6 June 2024 or 9 June 2024. He explained that he was going to discreetly raise the payslips with Mr Cousins “or even Mr Rowe” because he did not think that the two individuals named on the payslips were employees of the Respondent. Mr Ambrosio said that this did not eventuate, and he forgot all about the payslips.
The Respondent asserted that Mr Ambrosio should not have had access to these payslips and submitted that by disclosing them, Mr Ambrosio was in breach of the requirement in his signed terms and conditions of employment that he neither discuss nor reveal any details of a personal nature relating to the Respondent, its management, its co-workers and associates.[3]
The accessing of these payslips is a serious matter and I do not find Mr Ambrosio’s explanation that he happened to come across them while conducting cost analysis work to be persuasive. This is because Mr Ambrosio was not responsible for any payroll function while employed by the Respondent and the individuals concerned neither reported to him nor formed part of his responsibilities or operating unit. Mr Ambrosio was not responsible for the two individuals in a budgetary sense and yet gave evidence that indicates that he took the time to study the details of the payslips. It was self-evident that Mr Ambrosio obtained copies of the payslips while an employee of the Respondent. In doing so, I consider Mr Ambrosio breached an express warranty in his signed terms and conditions of employment, in that he copied and removed, without permission, documents relating to the business or affairs of the Respondent.[4] I am also satisfied that Mr Ambrosio breached the privacy of the two individuals to whom the payslips relate by sourcing their personal information and then retaining it. It is well established that facts in existence at the time of a dismissal, but not known to the employer at that time, may nonetheless be relied upon to justify the dismissal.[5] I consider that Mr Ambrosio’s actions in relation to the payslips constitutes serious misconduct and equates to a valid reason for his dismissal. That I have concluded there was a valid reason for Mr Ambrosio’s dismissal related to his conduct weighs in favour of a finding that his dismissal was not unfair.
While s.387(b) and s.387(c) refer to reasons related to the capacity or conduct of the employee, the Respondent did not notify Mr Ambrosio that there was any reason for his dismissal related to his capacity or conduct, valid or otherwise and nor did it assert that there was any valid reason for dismissal related to Mr Ambrosio’s capacity or conduct. This can be explained, in part, by the fact that the serious misconduct relating to the payslips was not known to the Respondent at the time of Mr Ambrosio’s dismissal. The considerations in s.387(b) and s.387(c) are neutral considerations in this matter.
As to s.387(d), the evidence before me indicates that there was no unreasonable refusal by the Respondent to allow Mr Ambrosio a support person at the discussion relating to his termination on 13 September 2024. As to the first meeting, held on 6 September 2024, at which the prospect of redundancy was first raised, Mr Ambrosio is aggrieved because he was not invited to bring a support person. However, Mr Ambrosio himself made no request ahead of the meeting that he be able to bring one. Section 387(d) will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.[6] In terms of s.387(e), the Respondent did not rely on issues of unsatisfactory performance, such that consideration of this particular factor is not required. These two factors (s.387(d) and s.387(e)) do not therefore weigh in favour of a finding of unfairness.
I consider the s.387(f) and s.387(g) factors offer some explanation for quality of the process implemented by Mr Rowe. At the time of the dismissal, the Respondent was not an employer of a scale that I would regard as significant (37 employees). Nor did it have dedicated internal human resource management specialists or expertise at that time. I consider these factors had a direct impact on the procedures Mr Rowe adopted because although he thought he had undertaken the correct procedures, he had not. I have noted Mr Rowe’s evidence of having relied on advice from an external human resource management adviser. Clearly, this advice was deficient because it did not prevent the lack of compliance with the consultation process in clause 38 of the Award, and nor did it appear to positively inform the approach taken by the Respondent in relation to the consideration of redeployment options, which is addressed below.
Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant. A finding that a dismissal was not a case of genuine redundancy within the meaning of s.389 of the Act does not necessarily lead to a conclusion that the dismissal was unfair. Even if the dismissal was not a “genuine redundancy” for the purposes of s.389 of the Act, it does not follow that the dismissal was not a bona fide redundancy for a legitimate reason.
In the context of considering s.389(1)(a) of the Act, the Full Bench of the Commission discussed the approach to be adopted to the consideration of whether the employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the enterprise in Christina Adams v Blamey Community Group[7], as follows:
“… it is necessary to state at the outset that consideration of whether the employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the enterprise does not involve a merits review of the employer’s decision to make the person’s job redundant. It is not to the point that it may have been open to the employer to make a different operational decision which may have allowed the relevant employee’s job to be retained. As was stated in Low v Menzies Property Services Pty Ltd, “Whether it was objectively fair or justifiable to decide to abolish a position is beside the point, as long as the employer acted as it did because of changes in its operational requirements.”[8] What s.389(1)(a) requires is for findings of fact to be made as to whether, firstly, the employer has made the decision that the relevant employee’s job is no longer required to be performed by anyone and, secondly, whether that decision was made because of changes in the operational requirements of the enterprise. If there was an ulterior motive for the decision - that is, if the real reason for the decision did not genuinely relate to any change in operational requirements, whatever the ostensible reason may have been - then it will not be possible to make the second finding of fact. However once these findings of fact are made, the element of the genuine redundancy definition contained in s.389(1)(a) is satisfied and no further inquiry is necessary.”[9]
(my emphasis)
I consider this approach provides useful guidance beyond any consideration of s.389 and having regard to the material before me, and in particular the evidence of Mr Rowe, I am satisfied that as at the date of Mr Ambrosio’s dismissal, 13 September 2024, the Respondent had decided that it no longer required Mr Ambrosio’s job to be performed by anyone because of the operational requirements of its enterprise. Specifically, Mr Rowe acting in his capacity as a director, determined that based on its financial circumstances, the Respondent no longer required Mr Ambrosio’s position as part of its organisational structure.
Mr Ambrosio suggested that the financial circumstances of the Respondent in the 2023/2024 financial year did not warrant his dismissal on the basis of redundancy because the Respondent had already suffered a loss during the previous financial year. This submission does not advance his case. A business is entitled to take measure in response to ongoing losses. There did not appear to be any dispute that the Respondent suffered a loss of approximately $300,000 in the 2022/2023 financial year or that by the end of April 2024, the Respondent’s 2023/2024 year-to-date loss already totalled more than $1.5 million.[10] The profit and loss statement produced to the Commission pursuant to an Order for production revealed the Respondent incurred a further loss for the months May – July 2024 totalling more than $760,000, before a combined profit of nearly $829,000 was achieved in the 3 months from August – October 2024. Mr Rowe explained that this profit was a consequence of timing, in that it had resulted from a customary, seasonal spike attributable to a period of peak demand for the Respondent’s products. The profit and loss statement also revealed that in November 2024, a further loss of approximately $69,000 was incurred.
Mr Rowe gave evidence that the Respondent’s response to its financial position was to implement a range of cost-cutting measures. These included restructuring that removed the jobs of 6 employees, including Mr Ambrosio. While it was argued by Mr Ambrosio that the Respondent also made a number of new appointments, Mr Rowe explained that the new appointments were not simply acts of replenishment but were instead strategic new hires, with the relevant individuals placed into roles created to drive future business growth. I consider it unremarkable that a company restructure in response to ongoing financial losses would result in the removal of some roles deemed surplus to operational requirements and the creation of new roles for the purpose of generating revenue growth.
Mr Ambrosio also asserted that the Respondent has not been able to adequately cover his former duties in the period since his dismissal but I had no way of evaluating this assertion. I accept, however, the evidence of Mr Rowe that he and another director of the Respondent, Mr Hamilton Rowe, determined that they would take on more operational tasks, and that this obviated the requirement for Mr Ambrosio’s position of Purchasing and Logistics Officer within the Respondent’s organisational structure.[11] I consider it is also unremarkable that an organisation might decide to remove a particular position and disburse the functions and responsibilities of that former position to others.
I am persuaded that the financial circumstances confronting the Respondent were not insignificant and I consider its operational requirements provided a legitimate reason to end Mr Ambrosio’s employment. This weighs against a finding that the dismissal was unfair.
Mr Ambrosio asserted that it would have been reasonable for the Respondent to have redeployed him. In particular, Mr Ambrosio focussed on labour hire work being performed for both the Respondent and some associated entities. I have noted Mr Rowe’s evidence that he undertook internal inquiries and engaged in dialogue in relation to the possible redeployment of Mr Ambrosio. While Mr Rowe considered a number of options, he did not raise them with Mr Ambrosio before ruling them out. Both Mr Ambrosio and Mr Rowe confirmed they shared no dialogue between the 6 September 2024 meeting and the 13 September 2024 meeting.
Mr Ambrosio drew attention to two online job advertisements that he says were in existence at the time he was dismissed and says he raised them at the 6 September 2024 meeting. Mr Howe had no recollection of them being raised at that time but said that the existence of these job advertisements was an oversight and that the Respondent was not actively advertising for those particular roles at the time of Mr Ambrosio’s dismissal. Mr Ambrosio also drew attention to the Respondent’s engagement of a new employee after he was dismissed but I note the individual concerned would appear to have been hired as an agronomist in business development, which is substantively different to the role previously held by Mr Ambrosio.
Information regarding the use of labour hire workers by the Respondent and its associated entities during the period 2 September 2024 and 8 December 2024 was produced to the Commission pursuant to an Order for production. This indicated labour hire workers were engaged by the Respondent for nearly 496 hours during the period 2 September 2024 to 17 November 2024. Mr Rowe described the work these workers performed as strenuous labouring, requiring heavy lifting. He considered it unsuitable for Mr Ambrosio because of a previous injury Mr Ambrosio had sustained. The information also revealed that an associated entity of the Respondent, Warby Range Organics utilised labour hire workers for a total of 2070 hours during the period from 2 September 2024 to 8 December 2024. Mr Rowe said that employees of the Respondent only ever did ad hoc work at Warby Range Organics and none were engaged there at the time of Mr Ambrosio’s dismissal. Further, Mr Rowe outlined that only skilled and experienced labour hire workers were engaged by the Respondent and its related entities and in particular, that Mr Ambrosio was not experienced in the cherry harvesting and fruit tree pruning work that the labour hire workers were performing at that time. In relation to a further related entity, Vard, Mr Howe said it is a small entity manufacturing cleaning products and I observe that at the time of Mr Ambrosio’s dismissal, it was not engaging labour hire workers.
Mr Ambrosio contended that there were temporary redeployment opportunities available which would have limited the adverse impact of his dismissal but they were not adequately addressed. As regards the labour hire work the Respondent had available at the time of his dismissal, Mr Ambrosio asserted that he had no ongoing issues to disclose and that he was capable of performing the physical work on offer. As regards the work at Warby Range Organics, Mr Ambrosio suggested that he could have performed work involving tractor or forklift driving, mowing and spraying.
Decided in the context of an employer having asserted that the dismissal in question was a ‘genuine redundancy’ within the meaning of s.389 of the Act, the Full Bench of the Commission in Ms Deborah Hallam v Sodexo Remote Sites Australia Pty Ltd (Hallam)[12] stated that a dismissal that would otherwise be a case of genuine redundancy under subsection 389(1) will not be so if it would have been reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise, or with an enterprise of an associated entity of the employer. The Full Bench confirmed that the analysis of such is to be applied at the time of the dismissal.[13] The Full Bench also outlined that while the Commission must be satisfied on the balance of probabilities, and based on the evidence, that there was a ‘job or a position or other work’ to which it would have been reasonable to redeploy the person, s.389(2) places no obligation on an employer to redeploy, or to do everything possible to achieve a redeployment outcome.[14]
As regards redeployment within the Respondent, I am satisfied there were no other roles to which Mr Ambrosio could have been redeployed and have noted that the total number of employees was being reduced. However, the Respondent also had an obligation at the time of Mr Ambrosio’s dismissal to consider whether it could have redeployed him into the labour hire work it had on offer within its enterprise, albeit this work ceased within 10 weeks of Mr Ambrosio’s dismissal. I accept that the Respondent considered this but held reservations about Mr Ambrosio’s physical capacity. I have also noted the assertion of Mr Ambrosio that he had no ongoing limitations that would have impeded his capacity to perform the manual labour. There was no discussion between the parties about labour hire opportunities when they met on 6 and 13 September 2024, and in the period in between. As such, I do not consider the feasibility of Mr Ambrosio performing the work being offered to labour hire workers was fulsomely explored at the time of the dismissal but equally, Mr Ambrosio did not inquire about labour hire work at the time of his dismissal and nor did he seek it when searching for new employment following his dismissal.
I am not persuaded the evidence in this matter establishes there was a job, position or other work to which it would have been reasonable in all the circumstances to redeploy Mr Ambrosio at an associated entity of the Respondent. Firstly, there was no work on offer at Vard at the time of Mr Ambrosio’s dismissal. Secondly, while Mr Ambrosio may have been able to perform some tasks that might have been required from time to time at Warby Range Organics, these tasks did not constitute a distinct role. Thirdly, I am not persuaded that Mr Ambrosio had either the skills or experience to immediately perform fruit picking and pruning tasks to the standard required of the labour hire workers being engaged by Warby Range Organics at the time of his dismissal.
I am satisfied Mr Ambrosio’s dismissal was due to a legitimate redundancy but I also accept that his dismissal has had a negative impact on him. Mr Ambrosio liked his job and was planning to stay with the Respondent for the long term. However, I do not find that these matters, and the others raised by Mr Ambrosio as part of the consideration of s.387(h), are sufficient to render his dismissal harsh, unjust or unreasonable. Mr Ambrosio may have been denied the opportunity to briefly continue his employment with the Respondent in the performance of labouring work that was being offered to labour hire employees, however I do not consider this weighs in favour of a finding of unfairness to an extent that overcomes the valid reason for his dismissal I have found arises out of his conduct in breaching the privacy of two co-workers by accessing their payslips and his copying and removing these documents without permission.
Conclusion
I have made findings in relation to each matter specified in s.387 of the Act as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[15] I am satisfied the dismissal of Mr Ambrosio was not harsh, unjust or unreasonable. Accordingly, I find that Mr Ambrosio’s dismissal was not unfair.
As I have found that Mr Ambrosio’s dismissal was not unfair, his application for unfair dismissal remedy is dismissed. Given this conclusion, I will not issue an Order.
DEPUTY PRESIDENT
Appearances:
Mr H Ambrosio on his own behalf.
Mr A Howe on behalf of Hybrid AG Pty Ltd.
Hearing details:
2025.
Melbourne.
February 5.
[1] [MA000002].
[2] Exhibit R5, Digital Court Book (DCB) at 255.
[3] Exhibit R4, DCB at 221 – see 9(c).
[4] Exhibit R4, DCB at 221 – see 9(d).
[5] Lane v Arrowcrest (1990) 27 FCR 427 at 456.
[6] Explanatory Memorandum to Fair Work Bill 2008 at para. 1542
[7] [2016] FWCFB 7202.
[8] [2014] FWC 7829 at [16].
[9] [2016] FWCFB 7202 at [14].
[10] Exhibit R4, DCB at 224.
[11] Exhibit R3, DCB at 207 – 208.
[12] [2017] FWCFB 6847 at [20].
[13] Ibid and Ulan Coal Mines Ltd v Honeysett[2010] FWAFB 7578 at [28]; TAFE NSW [2014] FWCFB 714 at [35].
[14] [2017] FWCFB 6847 at [20] and [35].
[15] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]-[7].
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