Karimbalan Jayakrishnan v Sincore Engineering Pty Ltd T/A Sincore Engineering Pty Ltd
[2014] FWC 2323
•17 APRIL 2014
[2014] FWC 2323 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Karimbalan Jayakrishnan
v
Sincore Engineering Pty Ltd T/A Sincore Engineering Pty Ltd
(U2013/3117)
DEPUTY PRESIDENT GOOLEY | MELBOURNE, 17 APRIL 2014 |
Application for relief from unfair dismissal - genuine redundancy objection dismissed - dismissal was harsh, unjust and unreasonable - reinstatement and compensation ordered.
[1] Mr Karimbalan Jayakrishnan was employed by Sincore Engineering Pty Ltd (Sincore) from June 2009 until his employment was terminated in August 2013. Mr Jayakrishnan claimed that he had been unfairly dismissed by Sincore.
[2] Sincore objected to Mr Jayakrishnan on the grounds that the termination was a genuine redundancy and Mr Jayakrishnan made his application prior to his dismissal taking effect.
Premature Application
[3] Mr John Singh, Sincore’s Managing Director, gave Mr Jayakrishnan his letter of termination on 27 August 2013. That letter advised Mr Jayakrishnan that, due to a change in workload, his services were no longer required. The letter further advised that he was to receive two weeks’ paid notice from 27 August 2013. As a result his dismissal took effect on 10 September 2013.
[4] On 3 September 2013, Mr Jayakrishnan advised Sincore that he was entitled to four weeks notice. Sincore agreed to pay the additional notice and relied on this to support its submission that the application was premature. Sincore argued that the effective date of dismissal was 24 September 2013.
[5] Mr Jayakrishnan lodged his application on 17 September 2013.
[6] I do not accept Sincore’s submission that the application was premature. The payment of an additional two weeks’ pay did not change the effective date of termination which was 10 September 2013. So much was clear from Mr Singh’s email in which he acknowledged the obligation to pay additional notice but advised that no annual leave was to accrue during this period. Clearly Mr Jayakrishnan was paid the additional amount in lieu of notice.
[7] As such Mr Jayakrishnan’s application was not premature. Even if I am wrong about this, I would have exercised my discretion under s.586(b) of the Fair Work Act 2009 to waive the irregularity in the manner in which the application was made. 1
Genuine Redundancy
[8] A genuine redundancy is defined as follows:
(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.
Sincore’s evidence
[9] Mr Singh gave evidence that Sincore supplies engineering equipment to the automotive industry. Its principal customers were Ford and to a lesser extent Toyota. 2 As a result of the downturn in the automotive manufacturing industry, Sincore had attempted to source other work. Sincore tendered for a job with Queensland Rail and Mr Jayakrishnan worked predominantly on this project. Around the same time Sincore secured a project to export equipment to Thailand.3
[10] As a result of these two projects, it was thought that the company would need to run its CNC machine over two shifts and would therefore need two CNC operators. 4 Sincore hired another CNC programmer who also had CMM experience.5 This new employee worked on the Thailand project as it required the jigs and fixtures to have a CMM report.6
[11] In July 2013, Sincore was advised that it had been unsuccessful in obtaining the work with Queensland Rail. Mr Singh said he told the workshop about this, and that as the content of the Thailand project had not been finalised, there was still a prospect that they might need two CNN operators. 7
[12] Once the content of the Thailand project was finalised at the end of August, it was clear that they would only need to run the CNC machine on one shift, and that the operator was required to have CMM experience. It was also necessary for them to engage other conventional machine operators for the job. 8
[13] Mr Singh said that they had to make one CNC operator redundant. Given the need to retain the employee with CMC experience, Mr Jayakrishnan was selected for redundancy.
[14] Mr Singh gave evidence that he had very little discussion with Mr Jayakrishnan about him being made redundant and that he had no one-on-one conversation with him. In fact Mr Singh told Mr Jayakrishnan that he was being made redundant on a day that Mr Jayakrishnan was not at work because he was ill.
[15] Mr Singh said that Mr Jayakrishnan could not be redeployed because he was not fully able to utilise a conventional machine.
[16] Mr Singh accepted that he had employed two additional conventional machine operators after he terminated Mr Jayakrishnan’s employment. One commenced on 29 August 2013 and the other on 28 October 2013. 9 Clearly a decision was made earlier than 29 August 2013 that the business required an additional conventional machinist.
[17] Mr Singh said that Mr Jayakrishnan’s job was not to operate conventional machines 10 and that he worked on conventional machines but only as a fill in.11
[18] He accepted that he had never spoken to Mr Jayakrishnan about his performance on the conventional machines because it was not his primary position so he did not expect him to perform as well as a conventional machinist. 12
[19] Mr Dalbir Singh gave evidence that, in his role as a CAD designer, he worked closely with the machine shop. Part of his role involved selecting the appropriate person to complete machining tasks. He said that he did not assign conventional machining work to Mr Jayakrishnan as his ability to use conventional machines was limited and he found that dedicated conventional machinists on conventional machines were more efficient. 13 Mr Singh had never spoken to Mr Jayakrishnan about his performance because it was not his job.14 He said that the conventional mills would not be fully utilised if Mr Jayakrishnan was working on them.15
Mr Jayakrishnan’s evidence
[20] Mr Jayakrishnan said that he was initially employed as a machinist and that he worked on conventional machines and on the CNC machine. 16 He said he had never been spoken to about his work performance on conventional machines.17 Mr Jayakrishnan tendered an insurance form signed by Mr Singh which described him as a machinist to support his contention that he was employed as a machinist and not as a CNC machinist.18 Mr Jayakrishnan accepted that he had filled in the insurance form himself and that Mr Singh had signed it.19
[21] Mr Jayakrishnan denied that he worked primarily on the Queensland Rail project. He said he worked on both the Queensland Rail project and the Thailand project and that he did not know that the Queensland Rail project was not going ahead. 20
[22] Mr Jayakrishnan said that on 26 August 2013, whilst he was on sick leave, he was called by Mr Singh who told him he was being terminated with one week’s notice. 21 He attended work on the 27 August 2013 and Mr Singh told him to leave the premises and take his tools.22 He asked Mr Singh the reason for his dismissal and he was told it was due to a change in workload. He was told that he did not need to work out his notice. Mr Jayakrishnan asked to stay on but he was told to leave.23 He asked Mr Singh for a letter and he was provided with a letter that advised that he would be paid two weeks’ notice.24 On 3 September 2013, he attended work and advised Mr Singh that he was required to give him more notice. He subsequently sent Mr Singh a letter25 setting out his claim and on the same day he received an email advising him that he would be paid four weeks’ notice, but that he was not required to attend work and he would not accrue holidays, RDO’s or sick leave during the notice period.26
Did Sincore no longer require Mr Jayakrishnan’s job to be performed by anyone because of changes in the operational requirements of their enterprise?
[23] I accept Mr Singh’s evidence that, because of the loss of the Queensland Rail job, Sincore no longer required two CNC operators and that retaining the CNC operator who had the CMC experience was an operational requirement.
[24] I do not accept that the evidence established that Mr Jayakrishnan was employed solely as a CNC operator. Mr Jayakrishnan started work as a tool maker in 1987. I accept Mr Jayakrishnan’s evidence that he was initially employed by Sincore as a machinist. This evidence was not contested. I accept his evidence that he worked on CNC machines and conventional machines. This is supported by the document signed by Mr Singh which describes Mr Jayakrishnan as a machinist. While I accept that he did not complete the form, presumably he read it before he signed the declaration that the answers were true and correct. 27 Further on the company’s list of employees Mr Jayakrishnan is listed as a CNC programmer/machinist.28
[25] As Sincore employed an additional machinist at the same time as it terminated Mr Jayakrishnan’s employment, I am not satisfied that there were operational changes that meant that Mr Jayakrishnan’s job as a machinist was no longer required.
Did Sincore meet its obligations under the award to consult with Mr Jayakrishnan?
[26] The relevant award was the Manufacturing and Associated Industries and Occupations Award 2010 (Award). That Award includes the standard consultation clause. Mr Singh accepted that Sincore did not comply with its obligations under the Award. 29 That concession was properly made.
Could Mr Jayakrishnan have been redeployed?
[27] Even if I am wrong about Mr Jayakrishnan being employed as a machinist, there was clearly at the time of his termination, a vacancy for a machinist. Mr Singh submitted that Mr Jayakrishnan did not have the skills to do conventional machining. He submitted that someone who worked on conventional machines developed speed and that retraining would not bring Mr Jayakrishnan up to the speed that a more experienced machinist could achieve. 30 Mr Singh submitted that CNC machinists and conventional machinists have different skill sets. He submitted that to use Mr Jayakrishnan on a conventional machine would result in a loss of productivity. He submitted that they considered redeployment but considered that it was not reasonable.
[28] In Ulan Coal Mines Limited v Honeysett and others 31 a Full Bench said this about redeployment:
“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.”
[29] I am not satisfied on the evidence before me that Mr Jayakrishnan could not have worked as a machinist at the required standard with a reasonable period of retraining. In any event these issues could have been explored during the consultation period and Mr Jayakrishnan would have had an opportunity to show that he had the requisite skills to be able to fill the vacant position.
[30] I find that the termination of Mr Jayakrishnan’s employment was not a genuine redundancy because he could have filled the vacant position and because there was no consultation.
[31] There was no submission that Sincore complied with the Small Business Fair Dismissal Code.
Was the termination of employment harsh, unjust or unreasonable?
[32] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Fair Work Commission (the Commission) must take into account the following:
Whether there was a valid reason for the dismissal related to Mr Jayakrishnan’s capacity or conduct (including its effect on the safety and welfare of other employees): s.387(a)
[33] Sincore did not have a valid reason for terminating Mr Jayakrishnan’s employment. While I accept that Sincore had a valid reason to reduce the number of CNC positions from two to one, as Mr Jayakrishnan was able to work on conventional machines and there was a vacancy for the a conventional machinist, there was no valid reason for the termination of his employment.
Whether Mr Jayakrishnan was notified of that reason: s.387(b)
[34] Mr Jayakrishnan was not told of the reason for his dismissal before the decision to dismiss him was made.
Whether Mr Jayakrishnan was given an opportunity to respond to any reason related to his capacity or conduct: s.387(c)
[35] MrJayakrishnan was not given an opportunity to respond before the decision to dismiss him was made.
Any unreasonable refusal by Sincore to allow Mr Jayakrishnan to have a support person present to assist at any discussions relating to dismissal: s.387(d)
[36] As no discussion occurred, this is not relevant.
If the dismissal related to unsatisfactory performance—whether Mr Jayakrishnan had been warned about that unsatisfactory performance before the dismissal: s.587(e)
[37] Mr Jayakrishnan was not dismissed for unsatisfactory performance.
The degree to which the size of Sincore’s enterprise would be likely to impact on the procedures followed in effecting the dismissal: s.587(f)
[38] This is a small business. Mr Singh accepted that he was not aware of his obligations to consult. Be that as it may,MrJayakrishnan had worked for Sincore for four years and he deserved more than a telephone call telling him that he was being dismissed with one week’s notice.
The degree to which the absence of dedicated human resource management specialists or expertise in Sincore would be likely to impact on the procedures followed in effecting the dismissal: s.587(g)
[39] Sincore did not have dedicated human resource management specialists or expertise and that had an impact on the procedures followed.
Any other matters that the Commission considers relevant: s587(h)
[40] There are no other matters that I consider relevant.
Conclusion
[41] There was no valid reason for the termination of Mr Jayakrishnan’s employment and the manner of his termination was particularly harsh. After four years service Mr Jayakrishnan was terminated without notice as required by the National Employment Standards. Mr Jayakrishnan was only paid his full entitlements when he pointed out to Mr Singh his legal obligations. Further, instead of sitting down with Mr Jayakrishnan and explaining to him what was happening and why Mr Singh did not think he was suitable for even a conventional machinist job, he was told by telephone that he was being sacked. For the reasons set out above, I find that the termination of Mr Jayakrishnan’s employment was harsh, unjust and unreasonable.
Remedy
[42] I have decided that I will hear further from the parties in respect of remedy. The parties are referred to ss.390 and 391 of the Fair Work Act 2009. Further information can be found on the Commission’s website. In addition, the Commission publishes a benchbook which contains information to assist parties in the preparation of material. It can be found at
DEPUTY PRESIDENT
Appearances:
Mr K. Jayakrishnan appeared for himself.
Mr J. Singh appeared for the Respondent.
Hearing details:
2014.
Melbourne:
17 March.
<Price code C, PR549425>
1 Mihajlovic v Lifeline Macarthur[2014] FWCFB 1070
2 Exhibit R1 at [1]
3 Ibid at [2]-[4]
4 Ibid at [4]
5 Ibid at [5]
6 Ibid
7 Ibid at [6]
8 Ibid at [8]
9 Exhibit R2
10 Transcript PN 140
11 Transcript PN 148
12 Ibid PN 173
13 Exhibit R3
14 Transcript PN 223
15 Ibid PN 244
16 Exhibit A1 at [1] and Transcript PN 60
17 Transcript PN 65
18 Exhibit A2
19 Transcript PN 75
20 Transcript PN 78-81
21 Transcript PN 57
22 Exhibit A1 at [2]
23 Ibid
24 Ibid and Attachment A
25 Ibid at Attachment F
26 Ibid at Attachment H
27 Exhibit A2
28 Exhibit R1
29 Transcript PN 263
30 Transcript PN 264
31 [2010] FWAFB 7578
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