Jesse Brandy v BMD Constructions Pty Ltd

[2015] FWC 6415

[2015] FWC 6415 [Note: An appeal pursuant to s.604 (C2015/6262) was lodged against this decision.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jesse Brandy
v
BMD Constructions Pty Ltd
(U2015/8331)

VICE PRESIDENT LAWLER SYDNEY, 21 SEPTEMBER 2015

Application for relief from unfair dismissal - genuine redundancy

[1] In this matter, the Decision was given in transcript, a copy of which is attached.

VICE PRESIDENT

Appearances:

Mr P Quinn, Construction, Forestry, Mining and Energy Union, appeared for the Applicant

Mr G Power, Draytons Workplace Consulting, appeared for the Respondent

Hearing details:

2015

Sydney

10 September

Printed by authority of the Commonwealth Government Printer

<Price code A, PR571982>

PN676 THE VICE PRESIDENT: So this is an application for an unfair dismissal remedy in respect of which the respondent has filed a jurisdictional objection. There were three issues identified by Mr Quinn on behalf of the applicant, and the first related to whether or not the applicant had been employed for a specified job or task. The respondent did not press its arguments in relation to that issue. The second issue was whether or not there was a genuine redundancy, and accordingly whether or not the Commission was deprived of jurisdiction by virtue of the absence of an essential prerequisite in section 385, and then the third related to whether or not the dismissal was harsh, unjust or unreasonable.

PN677 The case turns on the second issue, namely whether there was a genuine redundancy. The meaning of genuine redundancy is specified in section 389. I turn to the elements of that section. I am satisfied first of all that the evidence of Mr Lightfoot should be accepted in its entirety. I was impressed with Mr Lightfoot as a witness who gave candid and direct answers, including answers that involved making concessions that were not in the full interests of the respondent. But the explanations that he gave in relation to the course of the project, the changing requirements for manpower on the project, and the rationale for redundancies was compelling from an operational reason, and it reflects the nature of civil construction works that typically see low levels of employment at the beginning of a project, increasing, sometimes fluctuating and then certainly decreasing as the project draws to its conclusion.

PN678 In terms of the respondent no longer requiring Mr Brandy’s job to be performed by anyone because of those changes, it is clear from the Explanatory Memorandum and from the authorities that where there are a class of persons who all occupy a similar position there can be a reduction in the number of persons in that position, and that will be sufficient if that reduction is driven by operational changes for the requirement in section 389(1)(a) to be met, and so accordingly I am satisfied on the basis of the evidence of Mr Lightfoot that that requirement is met. The second requirement in section 389(1)(b) that:

PN679 ...the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

PN680 The applicant’s submissions set out the relevant clause for consultation and it emphasises, contrary to cognate provisions in the Act, that:

PN681 There must be consultation and communication with employees prior to a decision to introduce change or termination for reasons of economic, technological or structural or of a similar nature.

PN682 That is pursuant to clause 5.7(a) of the relevant agreement. I accept the evidence of Mr Lightfoot about the conversations that he had with the site supervisor, Mr Insel, and I also accept his evidence about the impending downsizing of manning levels on the site being raised at toolbox meetings, notwithstanding that the written records of those meetings do not reflect that. In relation to clause 5.7(b) it is arguable on the basis of the evidence of Mr Lightfoot that there may not have been full and complete compliance with the matters that are required to be the subject of the provision of information by the respondent, and the same comments apply in relation to clause 5.7(c).

PN683 So that it follows that I am satisfied that technically the union has established that there has not been full compliance with the strict terms of the consultation clause in clause 5.7. but having said that, I am satisfied that the process that Mr Lightfoot undertook in conjunction with Mr Insel was a bona fide process that he undertook in good faith, and it was a process that was directed at the substance of precisely what he ought be doing in the interests of the respondent, his employer, in properly managing the site and controlling costs by not having staffing levels remaining on the site that were unnecessary.

PN684 I am also satisfied on the evidence of Mr Lightfoot that even if there had been strict consultation in accordance with the clause, the outcome would have been no different. Mr Lightfoot was entitled to rely upon the advice and assistance of his supervisor, Mr Insel, in making the selections that he did, and he gave compelling evidence as to why each of the persons who were retained as employees were retained, and that was by reference to the level of particular skills that those employees possessed which were required on an ongoing basis on the site.

PN685 It is not to the point that Mr Brandy may have been capable of performing some or other of those functions. It is in the nature of the selection process that an employer is authorised to engage in that value judgments have to be made about relative skills and contributions, and there is no evidence before me that would allow me to conclude that the process was conducted by Mr Lightfoot in any way that was other than fair dinkum, to use that common expression. I turn to section 389(2):

PN686 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:

PN687 (a) the employer’s enterprise; or

PN688 (b) the enterprise of an associated entity of the employer.

PN689 There was no argument advanced in relation to associated entities so I confine my further remarks to the reasonableness in all the circumstances for Mr Brandy to be redeployed within the employer’s enterprise. In this regard again I accept the evidence of Mr Lightfoot and place reliance upon the emails that he has pointed to that demonstrates that he was concerned to try and find redeployment for Mr Brandy, and that he was unsuccessful in that regard.

PN690 There has been some evidence and argument about the distance of the other jobs that the company had in New South Wales from where the applicant lived and the amount of driving time involved, it seems to me that it is unnecessary to resolve those particular arguments because it is clear that Mr Lightfoot in fact made inquiries as to whether or not there were vacancies into which Mr Brandy could have been redeployed on those jobs and he as informed that there were not, and there is no evidence before me that allows me to reach a different conclusion.

PN691 In saying that I do not in any way cast any aspersions against Mr Curtain, whose evidence I accepted as being truthful. But it was no evidence that rose to a level of contradiction that would allow me to find on the balance of probabilities that the advice that had been given by the relevant managers to Mr Lightfoot was false or unreliable such that the condition in subsection (2) was not satisfied.

PN692 So for all of those reasons I am satisfied that this was a case of genuine redundancy within the meaning of section 389 and accordingly pursuant to section 385 I am prohibited from finding that Mr Brandy was unfairly dismissed and therefore I have no jurisdiction to deal with the application, must dismiss it and do so.