Joe Williams v Streamline Plastering Pty Ltd

[2014] FWC 2571

[2014] FWC 2571

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joe Williams
v
Streamline Plastering Pty Ltd
(U2013/15656)

DEPUTY PRESIDENT SMITH MELBOURNE, 29 APRIL 2014

Application for relief from unfair dismissal - jurisdictional objection - genuine redundancy.

Introduction.

[1] Mr J Williams believes that the termination of his employment with Streamline Construction and Consulting Pty Ltd (Streamline) was harsh, unjust and unreasonable. Mr Williams has been associated with Streamline since 2005 as both an employee and subcontractor. His latest period of employment commenced around May 2012 until his termination on the grounds of redundancy on 24 October 2013.

[2] Mr Williams is a plasterer and was undertaking his adult apprenticeship with Streamline in the latest period of employment.

[3] Streamline raise a jurisdictional barrier to the Fair Work Commission (the Commission) considering the application namely that his termination was as a result of a genuine redundancy.

The Jurisdiction Proceedings.

[4] At the commencement of the proceedings the parties asked that the matter proceed in the first instance by way of conference. In light of the requirements of s.399 of the Fair Work Act 2009 (the Act), I agreed that this was an appropriate course. Unsuccessful attempts were made to resolve the matter and given that nature of the case it was decided that I would deal with the jurisdiction argument by way of hearing. 1

[5] Streamline argued that it had complied with all of the necessary requirements for the matter to be considered a genuine redundancy (s.389). Mr Williams argued that the terms of the Streamline Plastering Pty ltd and the Finishing Trades Association of Australia Plastering Industry Enterprise Agreement 2011 -2015 2 (the Agreement) provided a consultation clause and this was not applied and therefore, consistent with s.389(1)(b) the Act, the termination of employment of Mr Williams was not a genuine redundancy for the purpose of the jurisdictional argument.

[6] Section 389 of the Act provides:

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.

[7] At clause 8, the Agreement provides for consultation and makes clear that for the purpose of discussing major workplace change, the employer will provide advice in writing. This was not done although Ms Sanderson submitted that verbal consultation had taken place. Given the submissions I announced that by not complying with the terms of the enterprise agreement, the jurisdictional objection must fail.

[8] The parties were again referred into conference to see if agreement could be reached. This conference did not produce an agreement and accordingly the matter was progressed further by way of hearing.

The Merits Hearing.

[9] Having determined the jurisdictional aspect of the application, I now turn to whether or not Mr Williams is otherwise protected from unfair dismissal. Mr Williams has completed the minimum period of employment. He is covered by an enterprise agreement and does not have an annual rate of earnings at or above the high income threshold. I find that Mr Williams is a person protected from unfair dismissal.

[10] The next matter to which attention is given is the criteria for considering harshness.

[11] Section 387 provides:

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.

[12] I will deal with each of these statutory considerations in turn, beginning with s.387 (a). Streamline argue that Mr Williams was made redundant as a consequence of a downturn in business. Streamline provided employee figures from October 2013 until February 2014 which showed that its employee numbers dropped from 38 tradesmen to 6. At the relevant time this was not a small business as defined. In addition, Streamline argued that when it made Mr Williams redundant it had no further work for plasters but did for some carpenters. In this context it was the relative capacity of Mr Williams which was considered by Streamline. There is no suggestion that his termination was as a result of any conduct on his part.

[13] In large measure this downturn was not disputed by Mr Williams, but his concern was that with some consultation other redeployment opportunities may have been found. I shall return to this aspect shortly.

[14] On the material before me it is clear that Streamline had a valid reason for terminating the employment of Mr Williams. He was notified of that reason 3. In relation to whether or not he was given an opportunity to respond raises for consideration as to what options may have been available to Mr Williams, Given this termination of employment was not related to conduct, but his relative capacity to perform the functions which remained in the business, this is an important consideration.

[15] The circumstances here can be distinguished from the circumstances which faced Roe C in Ball v Metro Trains Melbourne. 4From the material before me it is clear that there was no other position to which Mr Williams could have been redeployed. The employer had been raising the possibility of the work dropping off at toolbox meetings and the decision was not taken lightly. The failure to provide an opportunity for Mr Williams to discuss the matter would have served no real utility and to demand it now would not sit comfortably with the concept of a fair go all round.5 This is an employer under financial pressure and there is no good reason to impose a further cost burden by finding that a failure to consult about alternatives in these circumstances was harsh, particularly against the background of the information provided at the toolbox meetings.

[16] Sections 387 (d) and (e) are not relevant.

[17] Sections 387 (f) and (g) are relevant. Streamline was seeking to manage the flow of work in the building and construction industry as best it could and advised employees at toolbox meeting of the impending loss of work. This was the subject of evidence by Mr Tony Roberts who was at the time a site foreman. Mr Roberts was also made redundant. The evidence of Mr Roberts was that he raised the issue of redundancies and that there was no new work in the pipeline. There is no dedicated human resources management specialists in the business and it appears that Streamline took its obligations seriously.

[18] Finally, I am required to consider any other matter that the Commission considers relevant. This termination of employment occurred in the building and construction industry where intermittent employment is well known. The redundancy scheme for employees in this industry has been especially designed for this type of employment. This doesn’t make unemployment any less difficult and Mr Williams does need to find other work. It appears that he has been able to find other work. On this occasion, it is clear that a fair go all round means that the application should be dismissed.

Conclusion.

[19] I find that the termination of employment of Mr Williams was not harsh, unjust or unreasonable. I dismiss the application.

DEPUTY PRESIDENT

Appearances:

J Sayers solicitor on behalf of Mr J Williams.

M. Sanderson on behalf of Streamline Plastering Pty Ltd.

Hearing details:

2014.

Melbourne.

April 11.

 1   See section 396 of the Fair Work Act 2009 (Cth.).

 2   [2011] FWAA 8515.

 3   Section 387 (b) of the Fair Work Act 2009 (Cth.).

 4   [2012] FWA 7729.

 5   Section 381(2) of the Fair Work Act 2009 (Cth.).

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