Kevin Ashton v Downer EDI Mining Pty Ltd

[2021] FWC 4152

[2021] FWC 4152

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kevin Ashton
v
Downer EDI Mining Pty Ltd
(U2021/3863)

COMMISSIONER SIMPSON BRISBANE, 15 JULY 2021

Application for unfair dismissal – application lodged out of time – whether an extension of time should be granted – whether there was a genuine redundancy

[1] On 5 May 2021, Mr Kevin Ashton filed an application for unfair dismissal remedy in accordance with section 394 of the Fair Work Act 2009 (the Act) alleging his employment with Downer EDI Mining Pty Ltd (the Respondent) was terminated unfairly.

[2] Part 1.4 of the Form F2 application contains a question, “Are you making this application within 21 calendar days of your dismissal taking effect?” Mr Ashton answered on the Form F2 “No.” Mr Ashton provided that the reason for the delay was:

“I have only just found out on Saturday 2nd May 2021 (3 days ago) that my job was not made redundant. I was considering my options and feelings over the Labour day weekend.”

[3] On 10 June 2021, the Respondent lodged a Form F3 – Employer response to unfair dismissal application and objected to the application on the basis it was made outside the time required in s.394(3) of the Act and that the termination of Mr Ashton’s employment was by way of genuine redundancy.

[4] The matter was allocated to me to determine whether an extension of time should be granted to Mr Ashton to file his unfair dismissal application. I issued directions for the filing of material and the matter was listed for Hearing of the jurisdictional objections on 13 July 2021 by telephone.

Legislation

[5] Section 394 of the Act provides:

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

[6] Section 389 of the Act 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.

[7] The Respondent filed an Outline of Submissions – Jurisdictional Objection and a Statement of Aaron Beck (Mr Beck), a Statement of Barry Mckeown (Mr Mckeown) and a Statement of Tim Russell (Mr Russell) all filed on 28 June 2021. Mr Ashton had already filed correspondence sent to chambers on 11 June, and filed further correspondence of 30 June with attached screen shots of text messages. And further final correspondence of 1 July 2021 setting out his arguments as to why he should be granted an extension of time and why he believed that his termination was not a genuine redundancy.

[8] The kernel of Mr Ashton’s argument is that while he accepted at the time of his termination that his role was redundant, he only later discovered that a Mr Gavin Casten was engaged to perform his former role of Maintenance Planner. Mr Ashton said Mr Casten was in fact a fitter in the Ultra Class shed at Blackwater and he was never a Maintenance Planner while Mr Ashton was working at Blackwater.

[9] Mr Ashton said there were four planners in the planning department, not five as stated by the Respondent, and they were Jason Moffat, John Murphy, Jeremy Green and himself. Mr Ashton challenged what selection criteria was used to decide which of the Maintenance Planners were made redundant. Mr Ashton said Mr Moffat turned down the role offered to him, John Murphy was made redundant, Mr Ashton himself was made redundant and Jeremy Green was the only Planner who stayed on.

[10] Mr Ashton said with 13 years’ experience as a Fitter within the mining industry and over six years of those 13 years working with Downer, he questioned what the selection criteria was for an offer to stay or redeployment within the company.

[11] Mr Ashton said he was unaware of a new planner taking over his role until 2 May 2021 and at no time during any of the end of contract period was he aware of any other planner being available for the job as there were only four planners in the planning department.

[12] Mr Ashton’s evidence was that the Respondent did advise of the contract ending with the Respondent maintaining the BMA fleet to end on 8 March. Mr Ashton said the Respondent asked if people would put forward their choice to either stay or take a redundancy, and he chose to stay.

[13] In reference to the evidence of Mr McKeown, Mr Ashton said he seems to be the only one who thought that there were five planners, but Mr McKeown contradicts himself by stating that Mr. Casten was a Fitter. In response to the evidence filed by the Respondent Mr Ashton said their argument was that Mr Casten had 1SAP experience, however Mr Ashton said he did as well.

[14] Mr Ashton said there were no other roles available that didn`t require long hours of travel. Mr Ashton said the planning role was left till the last week possible to tell him with 5 weeks’ notice, and all other fitter roles at Blackwater had already been assigned well before his date of notification given.

[15] Mr Ashton said he did not dispute Mr Casten’s suitability, but the suggestion that he was not suitable. Mr Ashton summarised his case by saying he was doing the job and Mr Casten was not, and this is not a genuine case of redundancy.

[16] Mr Ashton advised at the hearing that he did not seek to challenge the evidence contained in the three witness statements filed by the Respondent, however maintained this was not a genuine redundancy given Maintenance Planning was his role, Mr Casten was not Maintenance Planner and he should have been selected. I advised Mr Ashton in the course of the hearing that issues such as a selection procedure for redundancy are not relevant if the Respondent satisfies the considerations in s.389. Mr Ashton indicated he accepted he had been consulted and that there were no other redeployment options.

[17] The Respondent’s submissions included the following.

[18] The Respondent is contracted to provide mining services to a variety of external clients on a contract basis. It is a wholly owned subsidiary of Downer EDI Limited.

[19] At Blackwater Mine, the Respondent was contracted by BHP Billiton Mitsubishi Alliance (BMA), a joint venture with BHP Billiton and Mitsubishi Corporation, to operate and maintain both the Respondent’s pre-strip fleet and BMA’s pre-strip fleet which comprised of rear-dump trucks, excavators and other associated heavy machinery necessary for mining activities.

[20] In around mid-2020 BMA advised the Respondent that it would no longer operate and maintain BMA’s pre-strip fleet after the end of the current contract term of 8 March 2021.

[21] As a result of the reduction in scope of work under the Respondent’s services contract, the Respondent was required to restructure its workforce.

[22] In undertaking the restructure to accommodate the loss of the services related to BMA’s pre-strip fleet, the Respondent selected employees from across its Blackwater workforce to man the Respondent’s new pre-strip fleet contract (New Contract). The New Contract took effect from 9 March 2021.

[23] Mr Ashton has argued that his termination was not a case of genuine redundancy as his role is being performed by Mr Casten and that he only became aware of this on 5 May 2021, 37 days after the termination date.

[24] The Respondent rejected this argument. The Respondent, as a direct result of the change in commercial contract, reduced the number of employees performing maintenance planning functions from five to two. Despite not being employed as a Maintenance Planner, Gavin Casten was essentially working as an “onsite extension of the planning team” which he performed on behalf of the BMA pre-strip fleet contract.

[25] The Respondent submitted that Mr Casten’s knowledge and experience was considered an operationally strategic link between the Respondent’s business and that of its client, BMA. Ultimately, Mr Casten was selected over Mr Ashton on the basis that Mr Casten’s “selection best suit the ongoing needs of the contract”.

[26] The Respondent said it consulted widely with all workers in the six months prior to the restructure. This included presenting to workers the outcome of the unsuccessful re-tender for the operation and maintenance of BMA’s pre-strip fleet contract, the effect on employment of workers, timing of the changes and options available to mitigate the effects of the redundancy. These presentations are included in Aaron Beck’s affidavit at Appendix 1 and Appendix 2. The Respondent submitted Mr Ashton was invited to participate in an Expression of Interest in other available roles within Downer Mining – however Mr Ashton did not nominate for any other roles at other sites.

[27] The Respondent submitted it wrote to Mr Ashton on 29 January 2021, via the known email of Mr Ashton, terminating his employment with five weeks’ notice on the basis of redundancy with the termination to take effect on 7 March 2021. The Respondent’s HR Manager, Mr Tim Russell, telephoned Mr Ashton that same day advising him that his employment was to be terminated due to redundancy following a period of notice.

[28] On this basis, the date of dismissal was 7 March 2021. The termination date is not disputed by Mr Ashton. The Applicant filed his application for unfair dismissal with the Fair Work Commission on 5 May 2021. The application was made 37 days out of time.

[29] The circumstances in this matter are not exceptional. Mr Ashton disputes his non-selection in a restructure and argues that the employee retained in the selection process was unsuitable. This is rejected by the Respondent. Aaron Beck, Maintenance Superintendent, who was tasked with providing a recommendation to the Respondent regarding the composition of the future maintenance planning function, recommended Gavin Casten on the basis of his experience and versatility. Mr Beck had worked previously with Mr Casten’s for approximately three years prior to the restructure.

[30] Mr Casten was considered one of the five options for the restructured Maintenance Planning team. The Maintenance Planning function in the new structure, which included Mr Casten in one of the two available roles, was effective within days after Mr Ashton’s termination.

[31] The Respondent submitted Mr Ashton had the opportunity to make enquiries as to the composition of the Maintenance Planning function both prior to, and immediately following, his termination. In addition to satisfying the FWC that the delay in making his application is consistent with the expression ‘exceptional circumstances’, Mr Ashton must address the criteria in s394(3).

[32] The Respondent submitted Mr Ashton has not outlined any exceptional circumstances why his application should be accepted out of time in accordance with ss394(3).

[33] The Respondent submitted Mr Ashton alleges in his application that on Saturday 2 May 2021 he found out that his role of Maintenance Planner was not made redundant on the basis that the duties that he had been doing are being done by someone else, namely Mr Gavin Casten.

[34] The Respondent submitted Mr Casten has been employed since 22 February 2016 at Blackwater Mine. Mr Casten was employed in a similar capacity to Mr Ashton, albeit in BMA’s maintenance shed. Mr Casten was selected, along with another employee, Jeremy Green, as the Maintenance Planners for the New Contract from the pool of available options.

[35] The Respondent submitted Mr Casten and Mr Green commenced working under the New Contract on 9 March 2021 when it took effect. Nothing in the Applicant’s materials explain why he only learned about the make-up of the Maintenance Planning team for the New Contract on 2 May 2021 as it was not a secret. The logical explanation is that the Applicant did not actively set out to determine who was selected in the team.

[36] The termination date of 7 March 2021 is not in dispute.

[37] The Respondent submitted it was unaware of any action taken by Mr Ashton to dispute their dismissal other than the lodgement of the unfair dismissal application.

[38] The Respondent submitted that it is prejudiced by the lack of specificity or evidence in Mr Ashton’s application to support his contention that his role was not made redundant. The Respondent is also prejudiced on the basis that some decision makers in the restructure have also had their employment terminated as a consequence of the redundancies.

[39] The Respondent also submitted that the application has no merit because the Respondent establishes in its evidence that the dismissal was a case of genuine redundancy and further that Mr Ashton at all relevant times knew that his dismissal occurred on 7 March 2021.

[40] The Respondent submitted Mr Ashton may be understandably disappointed that he was not selected in the maintenance planning team for the New Contract however, as addressed below, selection is not a relevant consideration in determining whether a redundancy is genuine or not. Irrespective of this point, the Respondent below addresses the selection of Mr Gavin Casten on the basis of his skills and experience in maintenance planning while working under the BMA’s pre-strip fleet.

[41] As set out below, the Respondent undertook a significant restructure of its operation following the loss of a major part of its service contract with BMA. Accordingly, a significant number of employees in a similar position were affected by redundancy. Further, had the Respondent selected the Applicant for one of the two Maintenance Planner positions available, it would have had to terminate the employment of Gavin Casten. The Respondent faced a circumstance where it had only two available positions to fill from a pool of five employees.

[42] The Respondent’s second jurisdictional objection is that the Applicant’s dismissal was a case of genuine redundancy in accordance with s389 of the Act.

[43] In mid-2020 the Respondent submitted it was advised that its contract for services at Blackwater Mine would reduce commensurate with providing operational and maintenance services for the Respondent’s pre-strip fleet and would no longer be responsible for providing operational and maintenance services from BMA’s pre-strip fleet.

[44] In August and October 2020, the Respondent presented to affected production and maintenance employees the changes to occur as a result of the loss of the contract to provide services on behalf of BMA’s pre-strip fleet.

[45] The number of employees required to perform the maintenance planning function was reduced from five to two 1. Also, the Respondent released a number of labour hire employees who were engaged as Fitters at Blackwater Mine in addition to 25 permanent Fitters and adult apprentices who were terminated.

[46] Mr Beck recommended that the Respondent consider Mr Casten for one of the available maintenance planning roles. This recommendation was accepted by Mr Mckeown as best suiting the ongoing needs of the contract. Accordingly, Mr Ashton’s role was one of many affected by the significant downturn in work and was terminated for operational reasons.

[47] The Respondent submitted it consulted in accordance with clause 2.20 of the Downer EDI Mining Blackwater Mine Enterprise Agreement 2018 (the Agreement). Mr Beck, in his evidence, detailed the steps taken to consult with Mr Ashton regarding the change in the organisation.

[48] There were limited opportunities for redeployment in the Respondent’s business at the time of the redundancy. Redeployment was not reasonable in the circumstances. The Applicant argues that redeployment was reasonable in the circumstances and that he should have been redeployed to a Diesel Fitter role. However, the restructure also resulted in the termination of 25 permanent Fitters and adult apprentices.

[49] Importantly, in this case, a significant number of employees were adversely affected by the downturn in work. The Respondent has provided evidence that Mr Casten, who was ultimately selected for one of the two available roles in the maintenance planning function had been employed with the Respondent since 22 February 2016, had relevant skills and experience, and was the preferred candidate as he would act as an operationally strategic link between the Respondent and its client, BMA.

CONCLUSION

[50] I am satisfied on the basis of the evidence that the Respondent lost a contract with BMA which led to a significant organisational change given the requirement to substantially reduce the size of its workforce. Mr Casten was a pre-existing employee with the Respondent that it decided to retain and deploy to one of two Maintenance Planner roles that would continue to exist after the changed operational requirements. As was submitted by the Respondent the fairness or otherwise of the selection process is not a matter for the Commission to enquire into in circumstances where each of the elements of s.389 are otherwise established.

[51] The selection process was the primary reason for Mr Ashton’s objection. Whilst it is understandable that Mr Ashton’s suspicions were aroused when he discovered some time after his termination on the basis of redundancy that another employee that was not previously engaged as a Maintenance Planner in the part of the business he had previously worked in was now filling a role as a Maintenance Planner, based on the uncontested evidence of the three witnesses for the Respondent, it has clearly established satisfaction of s.389(1)(a), (b) and s.389(2). Mr Casten was an existing employee and it was open to the Respondent to select him as one of the two employees to continue in employment in preference to Mr Ashton given it has satisfied the Commission this was a case of genuine redundancy.

[52] On the basis of that finding it follows that there are no exceptional circumstances warranting an extension of time given the reason for delay was Mr Ashton had discovered his termination was not a genuine redundancy when it is now clear it was. Further Mr Ashton was aware of his termination date as of 7 March 2021. There was no other action taken to dispute the dismissal other than the lodging of this application. Extending time would prejudice the Respondent given the findings above, and further the application has no merit as it is out of jurisdiction on the basis of the findings in regard to s.389.

[53] For the reasons set out above the application to extend time is denied and therefore the application is dismissed.

COMMISSIONER

Appearances:

Mr Kevin Ashton appearing on his own behalf.
Mr Jarrett Goos appearing for the Respondent.

Hearing details:

2021,
Brisbane:
July 13

Final written submissions:

Printed by authority of the Commonwealth Government Printer

<PR731704>

 1   Statement of Mr McKeown at paragraph 10.