Marios Andronicou v Cooke & Dowsett Pty Ltd

[2013] FWC 8097

[2013] FWC 8097[Note: An appeal pursuant to s.604 (C2013/6751) was lodged against this decision - refer to Full Bench decision dated 26 November 2013 [[2013] FWC 9174] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Marios Andronicou
v
Cooke & Dowsett Pty Ltd
(U2013/9311)

COMMISSIONER BISSETT MELBOURNE, 22 OCTOBER 2013

Application for relief from unfair dismissal.

[1] Mr Marios Andronicou (the Applicant) has made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that he was unfairly dismissed from his employment with Cooke & Dowsett Pty Ltd (the Respondent).

[2] The Applicant was employed as a daily hire employee, classified as a plumber in accordance with the Cooke & Dowsett Pty Ltd and CEPU - Plumbing Division (Vic) Enterprise Agreement 2011-2015 (the Agreement). He commenced employment with the Respondent on 24 August 2011. His employment was terminated on 16 April 2013.

[3] The Applicant sought permission to be represented in proceedings by Mr Gary Dircks of Just Relations. The Respondent sought permission to be represented by Mr Bruce Shaw of Counsel.

[4] I found that it would assist in the efficient conduct of the case to grant permission to both parties to be represented (s.596(2)(a)). Permission was therefore granted.

Was the dismissal a genuine redundancy?

[5] Section 396 of the Act requires that, prior to considering the merits of an application for relief from unfair dismissal the Commission must decide if the application has been made within the requisite time period, whether the person is protected from unfair dismissal, whether the dismissal is consistent with the Small Business Fair Dismissal Code, and whether the dismissal is a case of genuine redundancy.

[6] I find that the application has been made within the requisite time period, that the Applicant is protected from unfair dismissal and that the Small Business Fair Dismissal Code does not apply in this case.

[7] In this case the Respondent says that the dismissal was a case of genuine redundancy. This is disputed by the Applicant.

[8] The Act states:

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.

[9] It is not necessary, in considering if a dismissal is a case of a genuine redundancy to find that the employer has failed to meet its obligations under both s.389(1) and s.389(2). It may be that an employer legitimately no longer requires the work to be performed and has consulted appropriately but fails to consider appropriate redeployment opportunities. Alternatively if an employer has failed to meet its obligations to consult employees in accordance with a relevant award or agreement it is not necessary to consider whether redeployment would have been reasonable in order to find that the dismissal was not a genuine redundancy.

Is the job performed by the Applicant no longer required to be performed by anyone because of changes in operational requirements?

[10] The determination of this matter requires a consideration of what the Applicant’s job was and whether the Respondent no longer required this job to be done by anyone and the reason for this.

[11] The Respondent says that the Applicant was employed to work as a plumber on the Villa Maria project on 24 August 2011. In September 2012 he was relocated to the Swinburne project. Whilst at the Swinburne project on 21 September the Applicant injured his ankle. As a result of this injury the Applicant was unfit for work until 13 January 2013. At this time he returned to work on restricted duties at the Respondent’s warehouse. But for the injury the Respondent says the Applicant would have been returned from the Swinburne project to the Villa Maria project. That is, the Respondent says that the Applicant was employed to work on the Villa Maria project and that his move to the Swinburne project (which remains ongoing) was temporary.

[12] Work on the Villa Maria project concluded on 12 November 2012. The positions of the three employees on site at this time became redundant. The three employees were successfully redeployed to other work.

[13] The evidence of Mr Sullivan for the Respondent is that he was not responsible for determining where the Applicant worked. He says that his belief that the move of the Applicant to the Swinburne project was only temporary was based on the pay records. 1 He also says that, after the Applicant was injured when working at the Swinburne project, the position he was filling there was filled by another employee.

[14] Further, the evidence of Mr Sullivan is that there has been a general downturn in the industry such that the number of plumbers needed by the Respondent has reduced. His written witness statement indicates that in April 2013 the Respondent experienced a workforce reduction of 43 employees and between November 2012 and July 2013 had experienced a reduction of 56 employees, of whom 50 were plumbers. 2 His evidence is that reports of new projects gained by the Respondent which were outlined in the staff newsletters3 do not mean that plumbers are required immediately as it may be some time before a new project comes on line.

[15] In April 2013 the Applicant received a certificate of capacity indicating he could return to his pre-injury duties. Mr Sullivan says the Applicant’s position was at Villa Maria and because that project had finished it was necessary to attempt to redeploy the Applicant. Mr Sullivan says he sought, but could not find, any redeployment opportunities for the Applicant.

[16] The Applicant says that he was not assigned permanently to Villa Maria and he had been moved on an ongoing basis to Swinburne. If this is found to be the case, the Applicant submits that the most basic of requirements of a genuine redundancy has not been made out in that the job he was performing before his injury was still required to be done.

[17] The Applicant says he was told he would be working on the Swinburne project by both the foreman at Villa Maria and the foreman at Swinburne. In any case he also says he had at the time of his employment worked in Wantirna and did another project at Swinburne before going to Villa Maria and back to Swinburne. As such, he says he was not just employed to work on the Villa Maria project.

Consideration

[18] A decision as to whether the Respondent required the Applicant’s work to be done by anyone is not a simple consideration of whether the actual job being done by the Applicant is still being done.

[19] The Explanatory Memorandum to the Fair Work Bill 2008 states:

Meaning of genuine redundancy

1546. This clause sets out what will and will not constitute a genuine redundancy. If a dismissal is a genuine redundancy it will not be an unfair dismissal.
1547. Paragraph 389(1)(a) provides that a person’s dismissal will be a case of genuine redundancy if his or her job was no longer required to be performed by anyone because of changes in the operational requirements of the employer’s enterprise. Enterprise is defined in clause 12 to mean a business, activity, project or undertaking.
1548. The following are possible examples of a change in the operational requirements of an enterprise:
● a machine is now available to do the job performed by the employee;
● the employer’s business is experiencing a downturn and therefore the employer only needs three people to do a particular task or duty instead of five; or
● the employer is restructuring their business to improve efficiency and the tasks done by a particular employee are distributed between several other employees and therefore the person’s job no longer exists.

1549. It is intended that a dismissal will be a case of genuine redundancy even if the changes in the employer’s operational requirements relate only to a part of the employer’s enterprise, as this will still constitute a change to the employer’s enterprise.

[20] A reduction in the overall requirement of the Respondent for plumbers could therefore result in a genuine redundancy whether or not it was the Applicant’s particular position that was no longer required or some other position.

[21] The Applicant was employed to work for the Respondent. There is nothing before the Commission to suggest that he was employed to work on the Villa Maria project and that was all. Even if it was the case that this was the first project he worked on (and that is disputed by the Applicant) there is nothing to indicate that his employment with the Respondent was confined to this project.

[22] Whether the Applicant was employed only on the Villa Maria project and the move to Swinburne was temporary is not relevant to the determination of this matter. A change of requirements on the Villa Maria project is a change to the requirements of the enterprise.

[23] It is common knowledge that there are fluctuations in demand in the construction industry. Projects commence and conclude. The end of one project does not necessarily align with the commencement of a new project. There may be a delay between the winning of a project and the deployment of resources to that project.

[24] Mr Sullivan, the National Construction Manager for the Respondent, gave evidence in this matter.

[25] The figures provided by Mr Sullivan in his witness statement set out changes in staffing levels of the Respondent. He says that between November 2012 and July 2013 there was a ‘reduction in workforce size of approximately 28% (56 employees) including an approximate 32% (50 employees) reduction in onsite/operational employees.’ 4 He also says that in November 2012 the Respondent had 254 staff – 207 onsite and 47 support staff.5

[26] Mr Sullivan says that in April the Respondent experienced an overall reduction of 21% or 43 employees. 6

[27] Attachment A to Mr Sullivan’s witness statement is the Respondent’s Christmas 2012 staff newsletter. It states that the payroll of the Respondent at that time exceeded 320 people. 7

[28] The discrepancies in these sets of figures were not put to Mr Sullivan in cross examination although the Applicant was aware of them. 8 No explanation was given by Mr Sullivan of the discrepancies. I have difficulty, without some explanation, accepting that the Respondent went from 254 staff in November to 320 in December 2012 particularly in circumstances where Mr Sullivan says that the Respondent was experiencing a downturn in its business.

[29] If I accept the November staffing figure as accurate (254), a reduction of 28% ( as pt by Mr Sullivan in his written evidence) would be approximately 70 staff (28% of 254) – not 56 as claimed. 9 If the number of onsite employees from November had been reduced by 32% this would be reduction of about 66 staff (32% of 207) and not the 50 as claimed.10 The discrepancies would be greater if I accepted the December figure as accurate. These are substantial variations in the figures given by Mr Sullivan in his sworn evidence.

[30] Minor discrepancies in the staffing figures may be explained. Such major inconsistencies raise doubts about the accuracy of the material put before the Commission by the witness and the Respondent. It casts doubts over the accuracy of any evidence with respect to employee numbers and changes in those numbers, particularly the further figures given with respect to April.

[31] I do accept that there are fluctuations in staff numbers caused by changes in demand in the industry and the beginning and end of projects. The figures provided by the Respondent are, however, of little assistance to its claim of a reduction in staff around the time the Applicant was dismissed from his employment. This unreliability of the figures means I can give little credit to the claimed reductions.

[32] On the basis of a lack of sound evidence to support its claims of staff reductions at the period of time relevant to this application I cannot find that the Respondent no longer required the job done by the Applicant to be done by anyone due the operational needs of the business.

[33] Having found so, it is not strictly necessary to consider if the Respondent met its obligations under the consultative provisions of the agreement. This however was an issue in dispute and I consider there to be some utility in setting out my findings on this matter as well.

Did the Respondent meet the consultation requirements of its Agreement?

[34] The consultation requirements of the Agreement are:

10 Consultation

10.1 This term applies if:

(a) the employer has made a definite decision to introduce a major change to production, program, organisation, structure, or technology in relation to its enterprise; and

(b) the change is likely to have a significant effect on employees of the enterprise.

10.2 The employer must notify the relevant employees of the decision to introduce the major change.

10.3 The relevant employees may appoint a representative for the purposes of the procedures in this term. If:

(a) a relevant employee appoints, or relevant employees appoint, a representative for the purposes of consultation; and

(b) the employee or employees advise the employer of the identity of the representative;

the employer must recognise the representative.

10.4 As soon as practicable after making its decision, the employer must:

(a) discuss with the relevant employees:

(i) the introduction of the change; and

(ii) the effect the change is likely to have on the employees; and

(iii) measures the employer is taking to avert or mitigate the adverse effect of the change on the employees; and

(b) for the purposes of the discussion—provide, in writing, to the relevant employees:

(i) all relevant information about the change including the nature of the change proposed; and

(ii) information about the expected effects of the change on the employees; and

(iii) any other matters likely to affect the employees.

10.5 However, the employer is not required to disclose confidential or commercially sensitive information to the relevant employees.

10.6 The employer must give prompt and genuine consideration to matters raised about the major change by the relevant employees.

10.7 If a term in the enterprise agreement provides for a major change to production, program, organisation, structure or technology in relation to the enterprise of the employer, the requirements set out in subclauses 10.2, 10.3 and 10.4 are taken not to apply.

10.8 In this term, a major changeis likely to have a significant effect on employees if it results in:

(a) the termination of the employment of employees; or

(b) major change to the composition, operation or size of the employer’s workforce or to the skills required of employees; or

(c) the elimination or diminution of job opportunities (including opportunities for promotion or tenure); or

(d) the alteration of hours of work; or

(e) the need to retrain employees; or

(f) the need to relocate employees to another workplace; or

(g) the restructuring of jobs.

10.9 In this term, relevant employees means the employees who may be affected by the major change.

[35] This Agreement clause replicates the Model Consultation Clause found in the Fair Work Regulations 2009. 11

[36] The Respondent says that it complied with the consultation obligations under the Agreement in that it advised the Applicant of its decision to implement a major change and the likely effect of the change.

[37] The Respondent submits that it is the nature of the industry that:

• It seeks and acquires new building project works;



• It employs and allocates work on the basis of available work;



• Projects will conclude;



• Acquisition and conclusion of building projects is perpetuating;



• Continuity of work is unpredictable and subject to external influences outside its control;



• Each project or activity operates as a single entity;



• It will constantly be making definite decisions to introduce major change. 12

[38] The Respondent says that the unpredictable and fluctuating nature of the building and construction industry is evidenced by the industrial framework that supports the industry including portable long service leave and the industry specific redundancy scheme.

[39] Mr Sullivan’s evidence is that at the time the Applicant was assessed as fit to resume pre-injury duties it was unable to identify any suitable ongoing employment for him. Mr Sullivan raised this with the Applicant in verbal discussions and written correspondence on 16 April 2013.

[40] The Respondent submits that the requirements in clause 10.3 of the agreement are not relevant as neither party appointed a representative.

[41] The Respondent says that it met its obligations under clause 10.4 in that, as soon as the Respondent made a decision to introduce change it discussed the nature of the change with the Applicant including the effect of the change, advised the Applicant that there were no options to mitigate the effect of the change and provided relevant information to the Applicant. The Respondent says the Applicant did not raise any other matters in the meeting on 16 April 2013. It therefore has met its obligations under clause 10.6 of the Agreement.

[42] In the alternative the Respondent submits that the events resulting from the completion of the Villa Maria project was not a ‘major change to the production, program, organisation, structure, or technology in relation to its enterprise’ and as such the consultation obligations do not come into play. The Respondent submits that the loss of work is just part of the day to day operations of the industry. The Respondent therefore submits that there is no requirement to consult as the conditions necessary for that consultation have not been met.

[43] The Applicant submits that the consultation requirements of the Agreement is ‘tied up with the general notion of procedural fairness’ and the consultation process envisages discussion with enough time for a representative to be appointed. 13

[44] The Applicant submits that the process used by the Respondent of bringing the Applicant to a meeting and advising him that he was redundant with immediate effect is not consistent with the requirements of the Agreement.

[45] The Applicant submits that consultation is not ‘perfunctory advice on what is about to happen...consultation is providing the individual, or other relevant persons, with a bona fide opportunity to influence the decision maker.’ 14

[46] The Applicant therefore submits that the Respondent has failed to meet its obligations under the Agreement to consult with the Applicant as an employee effected by the change.

Consideration

[47] There is no evidence that suggests that each project of the Respondent operates as a discrete entity. In any event whether each project operates discreetly is not relevant to the question of whether the Respondent met its obligations to consult in accordance with the Agreement. The Respondent redeployed workers from the Villa Maria project when that project concluded. It clearly operates as a single entity regularly shifting employees from site to site.

[48] Whether the change in the program of work or requirements is ongoing or one off, the obligation to consult where a major change is likely to have a significant effect on employees is clear in the Agreement. A ‘significant effect’ is defined in the agreement to include termination of employees’ employment. Whilst projects ending (and starting) are part of the normal operations of the business this does not mean that the end of a project is not a major change in the organisation of the work of the Respondent.

[49] In this case the evidence is that the change in organisation of the business was going to affect at least one position. As soon as the Applicant was given a certificate of capacity saying he could return to his normal duties Mr Sullivan says he sought work for him. Prior to this time neither Mr Sullivan nor anyone else from the Respondent spoke to the Applicant of the difficulties that may be faced in returning him to his normal work once he was fit for work because of changes to the needs of the Respondent. To meet the consultation requirements is not so onerous that it could not be reasonably be fulfilled.

[50] I do not accept that clause 10.3 of the Agreement is not relevant as neither party appointed a representative. Had the Applicant been aware of the discussion he was about to have with Mr Sullivan he may well have appointed a representative. Mr Sullivan’s evidence that he could have done so the day after his dismissal and returned then with his representative to discuss the matter makes no sense. By that time the Applicant no longer had a job. He had been dismissed. It was too late. As the Applicant was not aware of the discussion that was to ensue on 16 April 2013 he had no opportunity to make any decision about a representative.

[51] It is my opinion that the Respondent totally misreads the obligations under the Agreement. The obligation is not to call the Applicant in, tell him he is redundant and see if he raises issues on which a response might be required. The obligations in the consultation clause are substantial with real purpose.

[52] If, as the Respondent says, there was a reduction of 21% of employees in April, I am satisfied that this will have come about by some major change in its business. That being so there is a positive obligation on the Respondent to consult with the Applicant (and any other affected employees) about that change in those requirements. The requirements on the Respondent are to notify the employees affected and then consult on those matters set out in clause 10.6 and give consideration to matters raised by the employees. This did not occur, at least with respect to the Applicant who was clearly affected by the change.

[53] I find that the Respondent has not met its obligations under the consultation provisions of the Agreement.

[54] I note the alternative position put by the Respondent that the change that occurred is not a ‘major change’ as envisaged by the consultation requirements of the Agreement but rather just the day to day normal change in requirements of the industry. Whilst this may be so this does not release the Respondent from its obligation to consult. If the Respondent was right, and it was released from its consultation obligations, this clause would have little work to do when redundancies arose from the normal day to day changes of a business as described by the Respondent and not unknown in the industry. Such an interpretation of the consultation requirements would have major ramifications in the construction and many other industries. I am not prepared to accept such a view with so little argument before me on the issue.

[55] I note for completeness that the Respondent says it reduced its workforce by 43 employees in April. A reduction of this magnitude (21% on Mr Sullivan’s evidence) must have come about by some substantial change in the business. Such a change would surely put in train the requirement to consult. If the Applicant was to be effected by such change he should have been included in the consultation that occurred.

[56] I find that the requirement to consult under the Agreement was not followed. For this reason I would also find that the dismissal was not a genuine redundancy.

[57] Having found that this was not a genuine redundancy it is not necessary for me to consider if the Applicant could have been redeployed.

Was the Applicant unfairly dismissed?

[58] Having found that the Applicant’s dismissal was not a case of genuine redundancy I must now consider if he was unfairly dismissed.

[59] There is no dispute that the Applicant is protected from unfair dismissal and that his application was made within the requisite time period.

[60] In determining if the dismissal was harsh, unjust or unreasonable consideration must be given to those matters set out in s.387(a)-(h) of the Act.

Valid reason (s.387(a))

[61] The meaning of ‘valid reason’ was considered in Selvachandran v Peteron Plastics Pty Ltd where Northrop J held that:

the adjective ‘‘valid’’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason... 15

[62] In this case there is no reason put forward for the dismissal of the Applicant except that he was no longer required because of the operational needs of the business. I have found above, however, that there was no genuine redundancy.

[63] Regardless of that finding there is no sound, defensible or well founded reason based on the capacity or conduct of the Applicant for his dismissal. 16

[64] The Applicant received a written warning from the Respondent on 20 March 2013. There is some dispute as to whether he received the letter during or after the meeting on that day although this is not relevant. Mr Sullivan says that Mr McCabe, the Applicant’s supervisor, spoke to the Applicant about the types of matters in the warning after the warning was issued. There is no evidence that matters were so serious that the Respondent needed to issue any further formal warning to the Applicant or take any specific action on the matter. Further there is no direct evidence from Mr McCabe with respect to matters of attendance being raised with the Applicant after this initial warning. Whilst some diary entries after 20 March 2013 indicate that the Applicant was late or did not attend work these entries were not attested to by anyone for the Respondent and whoever made them was not subject to cross examination. I do not consider that the one formal warning given to the Applicant provides a valid reason for his dismissal.

[65] I find there was no valid reason for the dismissal of the Applicant relating to his capacity or conduct.

Notification and an opportunity to respond (s.387(b) & (c))

[66] These matters go to whether or not the Applicant was afforded procedural fairness in relation to his dismissal related to his capacity or conduct.

[67] The Applicant was not notified of any reason for his dismissal related to his capacity or conduct nor given an opportunity to respond to such a reason. He was notified of a reason for his dismissal related to the operational needs of the business.

[68] The process used by the Respondent would not, in any event, withstand scrutiny. The Applicant was not advised of the purpose of the meeting he attended with Mr Sullivan, the meeting apparently did not take very long and the Applicant was given no more information other than that he was made redundant.

Support person (s.387(d))

[69] The actions of the Respondent denied the Applicant the opportunity to bring a support person with him to the meeting. However the Applicant did not request that the meeting adjourn so he could get a support person. I do not consider this to be a factor in reaching my conclusion.

Unsatisfactory performance (s.387(e))

[70] The Applicant’s dismissal did not relate to his unsatisfactory performance. This is not relevant to my consideration

Size of the enterprise and access to human resource management expertise (s.387(f) & (g))

[71] The Respondent is a reasonable sized enterprise employing between 150 - 300 employees. It has operations in multiple states.

[72] The Respondent has made no submissions on these matters. I therefore consider the matter as neutral in my consideration.

Other matters (s.387(h))

[73] There was no valid reason for the dismissal of the Applicant relating to his capacity or conduct.

[74] The Applicant submits that, pursuant to the requirements of the Accident Compensation Act 1985 (Vic) (the Accident Compensation Act) the Respondent is required to provide an injured worker with suitable work if the worker has an incapacity or with his/her pre-injury work or equivalent when they have returned to full capacity (s.194(2)) for a period of 52 weeks following notification of an injury or the making of a claim that is accepted (s.194(1)). The Applicant relies on s.194-196 of the Accident Compensation Act. The Applicant says his employment was terminated within this 52 week period.

[75] Contrary to the submissions of the Respondent there is nothing to suggest that the obligation created by the Act ends once an employee has a certificate of capacity indicating the worker can return to his/her pre-injury duties.

[76] The Applicant therefore submits that the Respondent dismissed him because he had a workers’ compensation claim. The compensation claim remained ‘live’ even though the Applicant had a certificate of capacity for work. The Applicant submits that the evidence of Mr Sullivan that jobs are ‘kept open’ for employees on short term sick leave but not when on workers’ compensation suggests that the reason for the dismissal was the Applicant’s workers’ compensation claim. The Applicant relies on Smith & ors v Moore Paragon Australia Ltd to support this proposition. 17

[77] On the evidence available I do not attribute such a motive to the Respondent. Rightly or wrongly Mr Sullivan believed that, having been certified as fit to return to his normal duties, the WorkCover claim of the Applicant was finalised. The Applicant was fit to resume his normal duties. In Mr Sullivan’s mind there was no WorkCover claim at the time he made the decision to dismiss the Applicant because of redundancy. Mr Sullivan appeared, through his evidence, to have very little knowledge of the workers’ compensation rights and obligations of the Respondent. Having considered the Applicant’s Workcover claim to be finalised it can hardly have then been a motive for his dismissal. 18

[78] Whilst I have found above that there was no evidence before me to support a conclusion that the operational needs of the business had changed such that the Applicant’s job was not longer required to be done by anyone that does not mean that that was not the case. It is that the evidence put to me could not support the conclusion. I appreciate what the Respondent says of fluctuations in demand in the industry. The Respondent is correct in suggesting that particular industrial arrangements have been put in place that recognises this.

[79] Ultimately the Respondent failed to consult with the Applicant about his dismissal. Were there a genuine downturn in the needs of the business such consultation would not have taken an extensive period of time.

[80] The Respondent says that there were no redeployment options available for the Applicant and that it did seek these out. Mr Sullivan’s evidence on this was confusing at best. His written witness statement says that he sought redeployment options for the Applicant in the Melbourne metropolitan area. He did not seek opportunities in regional areas because he believed the Applicant required supervision. During cross examination Mr Sullivan says he rang all sites around Australia on the morning of 16 April 2013.

[81] I am satisfied that Mr Sullivan sought some redeployment opportunities for the Applicant. I do not accept that he rang every site across Australia. Rather I accept that he rang sites in the Melbourne metropolitan area as stated in his written statement. I prefer this to his evidence under cross examination as his written statement would have been made in a less intense environment than a hearing room and would have been done with access to his records. The witness statement was also made closer to the events than the date of the hearing.

Conclusion as to harsh, unjust or unreasonable

[82] A dismissal may be:

• unjust because the employee was not guilty of the alleged misconduct



• unreasonable because the evidence or material before the employer did not support the conclusion



• harsh on the employee due to the economic and personal consequences resulting from being dismissed, or



• harsh because the outcome is disproportionate to the gravity of the misconduct (the punishment does not fit the crime).¹⁹

[83] In this case I find that the dismissal was unreasonable because of the lack of substantive grounds justifying the action by Respondent. It is unjust because there is no misconduct or incapacity of which the Applicant is guilty.

Conclusion

[84] In all of the circumstances I find that the Applicant was unfairly dismissed.

[85] The evidence is this case would suggest that the decision to make the Applicant redundant was the ‘easy’ decision to make. There is little evidence of serious attempts of the Respondent to find the Applicant alternative work. At best it would seem Mr Sullivan rang around some of the Respondent’s sites and asked if there were any vacancies. There is no evidence that he explored any upcoming opportunities, projects coming on line, etc. The Respondent’s attempts at securing on-going employment for the Applicant were minimal and showed little respect to an employee of almost two years standing.

[86] This is a situation which could so easily have been avoided had Mr Sullivan taken reasonable steps to talk to the Applicant about on-going employment prospects with the Respondent and had the Respondent remained up to date with its obligations under WorkCover.

Remedy

[87] The Applicant does not press reinstatement. He seeks compensation.

[88] In the circumstances of this case I am satisfied that the reinstatement is not appropriate.

[89] In determining the amount of compensation payable to the Applicant I have had regard to the provisions under s.392(2) of the Act.

[90] Nothing was put to me to suggest that an order for compensation will affect the viability of the Respondent.

[91] The Respondent submits that I should follow the reasoning in UES (Int’l) Pty Ltd v Leevan Harvey. 20 If it is found that the Respondent did not meet its obligations, it could meet those obligations within a very short timeframe, particularly as the Applicant was a daily hire employee under the Agreement. The Respondent submits that there is no doubt the redundancy was going to happen. Any compensation should be limited to any consultation period.

[92] The Applicant submits that the Respondent’s obligation to continue to provide employment to the Applicant under the Accident Compensation Actwould not have expired (given the Applicant remained fit for work) until 2 October 2013 (2 October 2012 being the date the Respondent received the medical certificate as specified in s.194(1)(a)(i) of that Act).

[93] I have carefully considered the obligations placed on employers under the Accident Compensation Act. It is clear from this Act that the Respondent had an obligation to the Applicant which it failed to meet. It is neither necessary nor appropriate for me to determine what action should be taken against the Respondent for a breach of the Victorian legislation. The provisions of that legislation are, however, a sound guide as to the period the employee would have remained in employment.

[94] In this case I find that the Applicant would have remained in employment with the Respondent until 2 October 2013, 24 weeks beyond the date of his dismissal.

[95] Section 392(2)(c) requires that I consider the remuneration the employee would have received had his employment not been terminated. The Applicant was earning $40.10 per hour plus a travel allowance of $30.80 per day. 21 I do not accept the Applicant’s calculation of his average earnings. His lost remuneration for 24 weeks is therefore $38,342.40 (based on a 36 hour week as per the Agreement) plus $3,450 superannuation.

[96] The Applicant says he has earned about $1,000 since the termination of his employment by working a day here or a day there. I have therefore deducted this amount from his lost remuneration.

[97] I have also deducted an amount of 10% for contingencies.

[98] The remuneration the Applicant would have been likely to receive had he not been dismissed is therefore $33,608.16 plus $3,025 superannuation.

[99] I am not satisfied the Applicant has put substantial effort into mitigating his loss. He has limited his search for work to that of plumbing. His complaint is that many of the jobs he found for plumbers were for roof plumbers, which is not the word he does. He says he also spoken to a couple of mates about jobs but this has not been successful. There is no other evidence of the Applicant taking positive steps to find employment that would mitigate the loss. Whilst I accept that he is a qualified plumber and he wishes to work in this field, on the evidence before me he has made no reasonable effort to find any work since his dismissal. For this reason I have reduced the amount of compensation by 15%.

[100] There are no other matters I consider relevant in determining compensation.

[101] I therefore find that the Applicant is to be paid compensation of $28,566.94 plus $2,571 to be paid into the Applicant’s superannuation account.

[102] The amount I intend to order is less than the maximum amount payable.

[103] I shall order that the amount is to be paid within 21 days of the date of the order made.

[104] An order to give effect to this decision will be issued in conjunction with this decision.

COMMISSIONER

Appearances:

G Dircks for the Applicant.

B Shaw of Counsel with S Kraemer for the Respondent.

Hearing details:

2013.

Melbourne;

8 October.

 1   Transcript PN 354-356.

 2   Exhibit R1, paragraphs 10-11.

 3   Exhibit R1, attachment 1 & 2.

 4   Exhibit R1, paragraph 11.

 5   Exhibit R1, paragraph 9.

 6   Exhibit R1, paragraph 10.

 7   Exhibit R1, Applicant A, page 1.

 8   Exhibit A4, paragraph 46.

 9   Exhibit R1, paragraph 11.

 10   Exhibit R1, paragraph 11.

 11   See R.2.09 and Schedule 2.3.

 12   Respondent’s submissions.

 13   Applicant’s submissions.

 14   CPSU v Vodaphone PR911257.

 15 (1995) 62 IR 371, 373.

 16   See, generally, UES (Int’l) Pty Ltd v Leevan Harvey[2012] FWAFB 5241.

 17   PR915674.

 18   Transcript PN 497-499.

19 Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 465.

 20   [2012] FWAFB 5241.

 21   Exhibit R3, paragraph 57.

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