Marjan Lasovski v Pro Electrical Services Pty Ltd

[2015] FWC 985

[2015] FWC 985

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Marjan Lasovski
v
Pro Electrical Services Pty Ltd
(U2014/12175)

VICE PRESIDENT LAWLER SYDNEY, 4 MARCH 2015

Application for relief from unfair dismissal.

[1] The Applicant was first employed by the Respondent as an electrician on or about 29 April 2013.

[2] The Applicant developed a serious illness affecting his liver. That illness was not related to his work. The illness resulted in the Applicant being unable to work for an extended period commencing in late September 2013.

[3] On 7 July 2014 the Applicant recommenced working for the Respondent.

[4] On 22 August 2014 the Applicant was terminated on the grounds of redundancy.

[5] The Applicant filed an application for an unfair dismissal remedy.

[6] The Respondent has raised two jurisdictional objections.

[7] First, it contends that the Applicant’s employment came to an end in 2013 and that, when he recommenced working for the respondent on 7 July 2014, this was a new engagement such that the Applicant was not protected from unfair dismissal because the alleged break in employment meant that he had not completed the required qualifying period: s.382(a) and s.383.

[8] Secondly, the Respondent contends that the dismissal was one of genuine redundancy such that he cannot have been “unfairly dismissed” because the requirement in s.385(d) is not satisfied.

[9] I accept the Applicant’s submission that his employment relationship with the Respondent did not come to an end in October 2013. The Respondent completed a form entitled “Employer’s Statement in connection with a claim for a Disablement Benefit (Attachment E to the Statement of Ms Pace). That declaration, completed on 14 May 2014 gave the answer “Yes” to a question “Is the employee’s job still open?”

[10] There is no evidence of the Respondent taking any step to alter that position. It follows that the Applicant should be treated as having been on unpaid sick leave in the period between late September 2013 and 7 July 2014.

[11] It further follows that the Applicant’s period of work commencing on 7 July 2014 was not done pursuant to a new engagement but, rather, represented a continuation of employment under the engagement that commenced in April 2013. It follows that the Respondent’s first jurisdictional objection must be rejected.

[12] Turning to the Respondent’s second jurisdictional objection, s.385 provides:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

“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.”

[13] I accept the evidence of the Respondent’s witnesses that the Respondent had genuine and, indeed, compelling operational requirements to reducing the size of its workforce. In particular, I am satisfied that the Respondent failed to win two contracts that it needed to win if it was to have sufficient work to maintain its workforce. I accept that the Respondent, that had a policy of maintaining employment of its staff if at all possible, was obliged by genuine operational requirements to reduce the size of its workforce. It made several employees redundant, including the Applicant, and it did not replace two employees who left the Respondent’s employ. The requirement in s.389(1)(a) was met.

[14] An enterprise agreement, the Pro Electrical Services Pty Ltd Single Enterprise Agreement 2013 (Agreement), applied to the employment. Clause 3.3 of the Agreement excludes the operation of any award and, in particular, the Electrical, Electronic and Communications Contracting Award 2010. However, clause 13 of the Agreement is a consultation term that imposed a obligation on the Respondent to consult with the Applicant in relation to its decision to make him redundant (see especially clauses 13.1, 13.5, 13.7 and 13.9(a)).

[15] It is clear on the evidence that the Respondent did not properly comply with that consultation obligation and, accordingly, the requirement in s.389(1)(b) is not satisfied. That said, I am also satisfied that such non-compliance was not conscious or deliberate.

[16] I am satisfied on the basis of the evidence from the Respondent’s witnesses that it would not have been reasonable in all the circumstances for the Applicant to be redeployed within the Respondent’s enterprise. There was no suggestion in the evidence that there was any such opportunity in the enterprise of an associated entity of the employer.

[17] While the financial circumstances of the company gave rise to genuine operational requirements that constituted a valid reason for the termination of the application, the failure of the Respondent to comply with its consultation obligations in accordance with s.389(1)(b) means that the Applicant’s dismissal was not a case of genuine redundancy within the meaning of the Act and, on that account, I am obliged to find that the dismissal was harsh, unjust or unreasonable, even after taking account of the other matters specified in s.387.

[18] Nevertheless, it is clear on the evidence that, even if the Respondent had complied with its consultation obligations, it would still have reasonably determined that the Applicant should be made redundant.

[19] The authorities make it clear that in such circumstances reinstatement is not an appropriate remedy and that the proper level of compensation ought not exceed the wages referable to the further period of employment that would have occurred if the Respondent had complied with its consultation obligations. I assess that period as being certainly not more than a week. In all the circumstances I assess the amount of $1,000 as an appropriate amount of compensation in lieu of reinstatement.

VICE PRESIDENT

Appearances:

Mr M Lasovski, the Applicant, appeared for himself

Mr G Jervis of National Electrical and Communications Association appeared for the Respondent, Pro Electrical Services Pty Limited

Hearing details:

2015

Sydney

12 December

15 December

Final written submissions:

2015

9 February 2015 - Applicant

19 February 2015 - Respondent

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