Mark Anderson v Programmed Industrial Maintenance Pty Ltd

[2021] FWC 4048

[2021] FWC 4048

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Anderson
v
Programmed Industrial Maintenance Pty Ltd
(U2020/15766)

DEPUTY PRESIDENT CLANCY MELBOURNE, 13 JULY 2021

Application for an unfair dismissal remedy – Applicant a labour hire employee contracted to a particular client site – dismissal not a genuine redundancy but access to client site withdrawn – dismissal not unfair – application dismissed.

[1] On 9 December 2020, Mr Mark Anderson made an application to the Fair Work Commission for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent to Mr Anderson’s unfair dismissal application is Programmed Industrial Maintenance Pty Ltd (PIM).

[2] PIM filed a Form F3 – Employer Response (Form F3)on 18 December 2020 objecting to Mr Anderson’s application on the basis that the dismissal on 19 November 2020 was a case of genuine redundancy and when the matter did not settle at a staff conciliation held on 12 January 2021, it was allocated to me for determination. My directions issued on 18 January 2021 included requirements for the parties to file and serve their outlines of argument, statements and documents on both the jurisdictional objection and the merits of the application. A member assisted conciliation on 1 March 2021 did not resolve the matter.

[3] I granted both parties permission to be legally represented and determined that it was appropriate for the factual disputes between them to be resolved through a hearing, which was conducted on 17 and 18 March 2021 and 18 May 2021.

[4] Mr Anderson gave evidence, as did the following witnesses he called:

•  Mr Josh Liley;

•  Mr Ron May; and

•  Mr Brenton Smethhurst.

[5] PIM’s witness evidence came from the following:

•  Mr Benjamin Cooke; and

•  Mr Kenny Babington.

[6] In addition, Mr Anderson tendered a witness statement from Mr Darcy Long but Mr Long was not required for cross examination. Mr Matthew Morrow, Reliability Team Leader for Bega Dairy and Drinks (formerly Lion Dairy and Drinks (LDD)), gave evidence on 18 May 2021. Mr Morrow had been ordered to attend for this purpose following an application made on behalf of Mr Anderson.

[7] A witness statement was filed on behalf of Mr Morrow on 14 May 2021. It was objected to by PIM. I advised the parties that I would not read the Mr Morrow’s statement until I heard and considered PIM’s objections to Mr Morrow’s statement on 18 May 2021. At that time, I determined I would admit certain parts of his witness statement. In addition, further evidence from Mr May, Mr Cooke and Mr Babington was received that day.

Orders for Production

[8] There were a number of applications for orders for the production of documents. Some were directed at LDD and in response to the first of these, an email from the Bega Group of companies was received by my Chambers on 11 February 2021 advising that the Bega Group had recently acquired all of the corporate entities that made up LDD and therefore the correct name of the corporate entity for the purposes of that particular Order should be Bega Cheese Limited (Bega). The orders I made were:

•  Orders made on 18 February 2021 requiring production by PIM and Bega; 1

•  Orders made on 3 March 2021 requiring further production by PIM and Bega; 2 and

•  An Order made during the course of the hearing on 17 March 2021 for production of an email from Mr Babington to another PIM employee, Mr Chris Collins, dated 13 November 2020. 3

[9] Pursuant to this last Order, PIM produced an email dated 13 November 2020 sent from Mr Babington to Mr Collins 4 and the parties were given an opportunity to lead further evidence and make submissions in relation to it.

Initial matters to be considered

[10] I will deal with the four matters referred to in ss.396(a)-(d) of the Act, as follows.

[11] Firstly, Mr Anderson’s application was made within the 21-day period after the dismissal took effect, as required by s.394(2) of the Act (s.396(a) of the Act).

[12] Secondly, Mr Anderson is a person protected from unfair dismissal, as he had completed the minimum employment period and further, at the time of his dismissal, his annual rate of earnings was less than the high income threshold (s.396(b) of the Act).

[13] Thirdly, as to whether this matter involves a dismissal that was consistent with the Small Business Fair Dismissal Code (s.396(c) of the Act), it was not in dispute and I find that PIM is not a small business employer within the meaning of s.23 of the Act, having 15 or more employees at the relevant time. As such, I am satisfied that the Small Business Fair Dismissal Code does not apply.

[14] Fourthly, under s.396(d) of the Act the Commission must decide before dealing with the merits of any unfair dismissal remedy application whether the dismissal was a case of genuine redundancy. Further, under s.385(d) of the Act, one of the requirements for an unfair dismissal is that it “was not a case of genuine redundancy”. As PIM submits Mr Anderson’s dismissal was a case of genuine redundancy, I will now consider this objection as to jurisdiction.

[15] Section 389 of the Act defines “genuine redundancy” 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.”

[16] Mr Anderson firstly worked for PIM as a casual employee from 3 February 2013 until August 2014, before being employed on a permanent full time basis until 19 November 2020 as a grade EW7 electrician at LDD’s Morwell site. Signed by Mr Anderson on 7 August 2014 was a Letter of Offer dated 30 July 2014 with an attached Letter of Assignment setting out the conditions of employment for Mr Anderson’s role. 5 In signing, Mr Anderson agreed and acknowledged that the Letter of Offer, including the Letter of Assignment and Skilled policies from time to time described the conditions of his employment.6 The Letter of Assignment outlined that the location of Mr Anderson’s employment was “SKILLED at Lion Dairy & Drinks at Morwell”.7

[17] Mr Babington assumed PIM responsibility for LDD’s Morwell site in August 2020. He said that in late October/early November 2020, he was told by Mr Morrow that Mr Anderson’s skills were deficient. On Sunday 8 November 2020, Mr Babington wrote to Ms Lauren Jensen, HR Adviser for PIM, stating he was trying to profile Mr Anderson due to LDD commenting on his performance and underlying skillsets deficiencies, and further:

“I am meeting with the client on Thursday to discuss and potentially investigating next steps for Mark in regards to further formal action and a PIP.

Client has been requested to send myself documented evidence and more official written complaint to allow myself to review, understand and make a fair and just assessment of what next steps look like.”

[18] Mr Cooke, who had been copied into Mr Babington’s email to Ms Jensen on 8 November 2020, sent an email to them both at 12.02pm on Monday 9 November 2020, attaching emails, warnings and corresponding information relating to Mr Anderson and stating that he was to have been placed on a PIP but this had not occurred “due to people leaving the business”.

[19] Mr Babington replied at 12.31pm on 9 November 2020, stating:

“Appears that there has been an ongoing concern with Mark over a considerable period of time. Understandably, “with the revolving door at Lion”, the appropriate next steps have never come to fruition.

Based on all correspondence and once I receive the information from client, the appropriate next step is to issue a formal warning to the employee based on their performance issues and initiate a PIP and upskilling training plan. This plan will need to be structured in collaboration with the client to ensure the employee is given adequate opportunity to improve their performance around the perceived gaps. Progress will be monitored via Lion internal feedback from the Production Operators and Reliability Team, with Chris Collins liaising with myself directly.”

[20] At 2.02pm on 9 November 2020, Mr Morrow sent an email to Mr Babington, which stated:

“Hi Ken,

We have been impressed with Brenton over the last week. He has demonstrated in this short time the behaviours and skills we require in a day shift electrician.

As PIM have now supplied an electrical trade that has the required skill level to help our site achieve we request moving Brenton into the position currently being filled by Mark Anderson.

Please initiate your internal change management procedures to facilitate the request.

We would like to thank Programmed Industrial Maintenance for their selection of a high calibre electrician to assist our site.”

[21] At 7.13am on Tuesday 10 November 2020, Mr Chris Collins sent an email to Mr Babington (copying in Mr Morrow) which stated:

“Hi Ken

Here is the list of expectations that Matt and I would expect of an electrician.

•  Proficient in Allen Bradley and Omron PLC fault finding and programming unaided

•  High knowledge of VSD troubleshooting

•  Knowledge of instrumentation such as RDT and pressure transmitters, set up and fault finding

•  Proactive in Continuous improvement of filling and packaging lines

•  Proactive in completing breakdowns and doing such in a timely manner.

•  High skill level of problem solving electrical issues

•  Willingness to participate in Lean manufacturing projects, promoting benefits of this amongst the rest of the team.” 8

[22] At 11.42am on Wednesday 11 November 2020, Mr Babington sent an email to Mr Morrow which stated:

“I have initiated the HR process and we are awaiting your documented correspondence on the issues/gaps with Mark Anderson, as was discussed the other week.

Once received, I can then have HR send through advice on process and the relevant paperwork.”

[23] Mr Morrow sent an email in response at 1.22pm on Wednesday 11 November 2020, which stated:

“Hi Ken,

To follow on with what Chris sent through the red items are areas Mark is below what is expected.

The below list is what we would expect of a day shift and rotating shift based trade.

•  Proficient in Allen Bradley and Omron PLC fault finding and programming unaided

•  High knowledge of VSD troubleshooting

•  Knowledge of instrumentation such as RDT and pressure transmitters, set up and fault finding

•  Proactive in Continuous improvement of filling and packaging lines

•  Proactive in completing breakdowns and doing such in a timely manner.

•  High skill level of problem solving electrical issues

•  Willingness to participate in Lean manufacturing projects, promoting benefits of this amongst the rest of the team.

Please let me know if you require anymore.”

(my emphasis, with red text from original reproduced in italics)

[24] Mr Babington gave evidence at the hearing that he did not recall receiving that particular email or to having seen it prior to its production by Bega.

[25] A meeting occurred on 12 November 2020 between Mr Babington and Mr Cook of PIM and Mr Morrow and Mr Jude Van Der Zalm of LDD. A key difference about what some of the discussion involved is apparent.

[26] Mr Babington said that Mr Morrow told him the role performed by Mr Anderson was no longer required to be performed by anyone and that LDD rejected a PIM proposal to swap Mr Anderson with another employee, instead advising that the duties performed by Mr Babington would be absorbed by PIM’s existing workforce, or ad-hoc casuals if necessary. 9 Mr Babington also said that he requested information regarding the performance concerns LDD had with Mr Anderson and was told this would be sent to him.10 Further, he said that Mr Van Der Zalm advised that Mr Anderson was not permitted to return to site and his site security access would be revoked. Mr Cooke’s account of the meeting was similar, being that he and Mr Babington were told that Mr Anderson’s position was being removed from the LDD Morwell site and his site access was being revoked. Mr Cooke said that at no point was he ever asked to remove Mr Anderson from site and replace him immediately with a full time role.

[27] For his part, Mr Morrow said that while he told Mr Babington and Mr Cooke at the meeting on 12 November 2020 that LDD no longer required Mr Anderson in his role, he nonetheless confirmed that LDD still required that role to be filled. Mr Morrow rejected the suggestion he had said that Mr Anderson’s role was removed or that duties would have to be dispersed to other electricians. He also rejected the contention that Mr Babington had presented a proposal to swap Mr Anderson with another employee and he appeared to contend that Mr Babington and Mr Cooked had made this up. 11

[28] Following that meeting, Mr Morrow sent an email to Mr Babington at 2.42pm the same day with identical text to that contained in the email he sent to Mr Babington at 1.22pm on 11 November 2020, aside from the additional statement “Due to this skills gap we no longer have a requirement for Mark on site.” He said this sentence was added at the request of PIM. 12 Mr Morrow gave evidence that the emails of 11 November 2020 and 12 November 2020 were both sent for the same reason.

[29] I observe the email dated 12 November 2020 did not state LDD still required Mr Anderson’s role to be filled but equally, it also did not explicitly state that LDD no longer required Mr Anderson’s job on site to be performed by anyone.

[30] Mr Babington said he was asked by Mr Cooke to talk again with LDD to see whether there was any possibility of them changing their mind. Mr Cooke said he was told by Mr Babington that he had spoken to “the LDD representatives once again, but there was nothing that could be done to keep this position on site and Mr Anderson’s site access would be revoked.” 13

[31] However, Mr Morrow said he had no recollection of PIM speaking to him after the meeting on 12 November 2020 and nor does he recall PIM enquiring at any point about whether LDD would change its position in relation to Mr Anderson. 14 When it was suggested to him, Mr Morrow agreed that it was possible that Mr Babington would have spoken to Mr Van Der Zalm.15

[32] Mr Babington said either Mr Morrow or Mr Van Der Zalm were spoken to on the afternoon of 12 November 2020, and then again on 17 November 2020. 16 Mr Babington said the majority of communications about particular positions would generally be directed to Mr Morrow but it would appear that Mr Van Der Zalm had the final say for recruitment on the Morwell site and that Mr Morrow reported to Mr Van Der Zalm.17

[33] As regards the toolbox meeting on 17 November 2020 referred to by Mr May, Mr Morrow recalls saying that LDD had been working with Mr Anderson for 8 weeks but he had not “come up to scratch” but he does not recall Mr Van Der Zalm stating that LDD was looking into what was going to happen to Mr Anderson’s job.

[34] In the email from Mr Morrow to Mr Babington sent at 2.20pm on 9 November 2020 referred to above, reference was made to Mr Brenton Smethurst and specifically, a request was made that Mr Smethurst be moved by PIM into the position held by Mr Anderson. Mr Babington said that this request was not actioned by him because Mr Morrow subsequently advised him that Mr Anderson’s role was no longer required. Mr Babington said Mr Smethurst was not discussed in the 12 November 2020 meeting.

[35] Mr Smethurst said that he worked for PIM at the LDD Morwell site for about 2 or 3 weeks from the start of November 2020 on a casual basis and that on or just before 13 November 2020 he was verbally offered a job as an electrician by a PIM manager, whose name he could not recall, who was visiting the site at the time. Mr Smethurst’s understanding was that the PIM manager was not the “on-site” supervisor but rather, was responsible for various different sites. Mr Smethurst said the PIM manager told him that a permanent day shift electrician position at the LDD Morwell site would be available and if he indicated that he wanted the position, then PIM would provide him with a formal letter of offer. Mr Smethurst said he replied by saying that he would think about it but did not ultimately take up the offer, instead taking other work he had “in the pipeline.”

[36] Mr Babington confirmed that on 12 November 2020, he was the manager who spoke to Mr Smethurst but he denied offering him a permanent day shift electrician position. Mr Babington says he told Mr Smethurst that the role that might become available was an electrical coordinator on day shift, that there had been discussions of filling that role with LDD, but at that time PIM had not had a formal request. Mr Babington also said there was not a permanent role available for which he could provide Mr Smethurst with a letter of offer at that time. Mr Babington’s evidence appeared to be that he asked Mr Smethurst whether he could indicate whether he was interested in a potential position. 18

[37] Mr Smethurst was briefly cross-examined as follows:

“At paragraph 4 of your statement, you give evidence that someone you can’t recall offered you a “Permanent day shift electrician position”?  -Yes, correct.

This was actually an electrical coordinator role supporting the automation team?  -Not to my knowledge.

Well, not to your knowledge - it wasn’t Mr Anderson’s job that he was offering you, was it?  -No.

No, it wasn’t, and someone typed this statement up for you, didn’t they?  -Correct.” 19

[38] In the re-examination that immediately followed, Mr Smethurst’s evidence was:

“Mr Smethurst, you were asked whether someone typed up this statement for you and you answered that they did. Was the - did you review the statement after it was typed up?  -Yes. I reviewed and made sure all the information (indistinct).

All the information was - I think you cut out there?  -Correct - sorry. Correct, yes.

Were you satisfied that it was correct?  -Yes.

Earlier today you’ve confirmed that the statements - the statement is true and correct. You have nothing in that statement that you wish to change?  -No.” 20

[39] An email sent by Mr Babington to Mr Collins at 10.58am on 13 November 2020 21 was produced in response to the Order I made during the course of the hearing on 17 March 2021. It stated:

“Hi Chris,

As discussed with yourself and Brenton, this is a template of the Permanent Offer for his reference.

The offer is a permanent G7 Electrician ‐Dayshift Roster Position at Lion Morwell and hourly rate remains as he is on now ($55.0800), plus standard EA entitlements (Annual Leave, RDO etc).

Unfortunately, I cannot generate a full offer and casual to permanent. This will completed once Brenton accepts and we lock in a start date.”

[40] Having initially given evidence that he had no recollection of sending an email to Mr Collins on 13 November 2020 regarding a permanent day shift role, 22 Mr Babington said the email subsequently produced did not relate to Mr Anderson’s former position in the Day Work Reliability Team but rather, relates to the discussion he had with Mr Smethurst in which he inquired as to whether Mr Smethurst might be interested in the Coordinator Role. Mr Babington argues that the ‘G7 Dayshift Roster Position’ referred to is the position and pay grade for the Coordinator Role, which is a dayshift position. He said the electricians in the Day Work Reliability Team differ because they can work shifts to cover absences in the Shift Work Reliability Team. Specifically, Mr Babington said Mr Anderson’s contract expressly stated that he had to make himself available for day, afternoon or night shift work, including 12 hour continuous shifts.

[41] Mr Babington said that PIM shift electricians are generally graded as G7 and sought to make good his argument by referring to an email sent to him by Mr Sean Donnelly on 2 July 2020 in which Mr Donnelly advised him that the job description for the Coordinator Role “is the same as a shift electrician at Lion Dairy, but only work day shift.” 23 Mr Babington said that he thought that because Mr Smethurst was working casually, he might be interested in a permanent G7 position as Coordinator even though the position did not attract shift penalties.

[42] Mr Babington also sought to argue that this email did not constitute an offer of employment to Mr Smethhurst but was instead an internal email between himself and Mr Collins for the purposes of providing additional information regarding the position in the event that Mr Smethhurst was interested in considering the position and LDD decided to award the position to PIM. Mr Babington said he was aware at that time Mr Smethurst had alternative trial employment arranged and had not expressed any firm interest in the Coordinator Role and as such, he would not have made him an offer of employment. Mr Babington claims it therefore would have made no sense to have made an offer, which in any event would have been outside the ordinary PIM recruitment processes.

[43] Mr Morrow referred to email correspondence between himself and Mr Van Der Zalm on 25 November 2020 in which Mr Zan Der Zalm asked him whether there was “any feedback from Ken regarding potential electrical trades”, to which he replied “…they are collecting resumes now, he mentioned an issue not being able to recruit for a full time elec.” 24 Mr Babington’s evidence was that he had no recollection of any phone calls or correspondence with LDD about a full-time electrical role, there was nothing formal in writing to him in November 2020 and he did not recall saying to Mr Morrow around that time that there was an issue with not being able to recruit for a full-time electrician.25

Consideration - Section 389(1)(a)

[44] When considering s.389(1)(a) of the Act in Christina Adams v Blamey Community Group, 26 the Full Bench of the Commission stated:

“… it is necessary to state at the outset that consideration of whether the employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the enterprise does not involve a merits review of the employer’s decision to make the person’s job redundant. It is not to the point that it may have been open to the employer to make a different operational decision which may have allowed the relevant employee’s job to be retained. As was stated in Low v Menzies Property Services Pty Ltd, “Whether it was objectively fair or justifiable to decide to abolish a position is beside the point, as long as the employer acted as it did because of changes in its operational requirements.” 27 What s.389(1)(a) requires is for findings of fact to be made as to whether, firstly, the employer has made the decision that the relevant employee’s job is no longer required to be performed by anyone and, secondly, whether that decision was made because of changes in the operational requirements of the enterprise. If there was an ulterior motive for the decision - that is, if the real reason for the decision did not genuinely relate to any change in operational requirements, whatever the ostensible reason may have been - then it will not be possible to make the second finding of fact. However once these findings of fact are made, the element of the genuine redundancy definition contained in s.389(1)(a) is satisfied and no further inquiry is necessary.”28 (my emphasis)

[45] PIM submits that the definition of genuine redundancy in s.389(1)(a) of the Act is made out on the facts:

•  LDD notified PIM that it needed a different skillset/job to the job Mr Anderson was performing and then, at the meeting on 12 November 2020 removed the need for the job altogether when it advised PIM that Mr Anderson’s position was being removed from site;

•  LDD’s removal of the job meant that PIM’s “enterprise” at LDD’s Morwell site did not require the job to be performed by anyone, with his duties to be absorbed by other employees or ad hoc casual employment; and

•  No one has performed Mr Anderson’s job on at LDD’s Morwell site since.

[46] PIM submitted this advice was confirmed in the email sent by Mr Morrow to Mr Babington at 2.42pm on 12 November 2020, relying particularly on the inclusion of the statement “Due to this skills gap we no longer have a requirement for Mark on site.”

[47] PIM further submitted that LDD’s abolition of Mr Anderson’s position and removal of his permission to access its site meant that its operational requirements at LDD’s Morwell site had changed.

[48] There is a clear dispute as to what was conveyed by LDD at the 12 November 2020 meeting between Mr Babington, Mr Cooke, Mr Morrow and Mr Van Der Zalm. Mr Babington and Mr Cooke maintain that they were advised that the role performed by Mr Anderson was no longer required to be performed by anyone. Mr Morrow’s evidence was that he told them LDD no longer required Mr Anderson in his role but LDD still required that role to be filled.

[49] Ultimately, I prefer the evidentiary case advanced by Mr Anderson for the following reasons:

•  The language of the email sent by Mr Babington to Mr Morrow at 2.02pm on 9 November 2020 was unequivocal: LDD still required a day shift electrician and requested that Mr Anderson be replaced by Mr Smethurst;

•  I prefer Mr Smethurst’s evidence regarding the discussion he had with Mr Babington on 12 November 2020 and am persuaded that on that day, Mr Babington offered Mr Smethurst the position formerly held by Mr Anderson. This is consistent with the instruction given by Mr Morrow in the 9 November 2020 email and I am not persuaded by the submission for PIM that I should, based on the evidence adduced from Mr Smethurst in cross-examination, make the evidentiary finding that he was not offered Mr Anderson’s job. I consider Mr Smethurst’s evidence in re-examination speaks for itself;

•  Consistent with that offer having been made, Mr Babington sent the email of 13 November 2020 to Mr Collins. I do not find Mr Babington’s explanation in relation to the email he sent to Mr Collins on 13 November 2020 convincing because he initially gave evidence of having no recollection of sending the email and I find his proposition that this email did not constitute an offer of employment unpersuasive and his general evidence in relation to this email unconvincing because it does not accord with the clear wording: “As discussed with yourself and Brenton” and the terms “Permanent Offer”, “the offer” and “once Brenton accepts”;

•  I reject Mr Babington’s assertion that the letter of offer outlined in his email of 13 November 2020 to Mr Collins was for the Coordinator Role (and not Mr Anderson’s role) on the basis that it was in relation to the ‘G7 Dayshift Roster Position’, whereas Mr Anderson’s contract expressly stated that he had to make himself available for day, afternoon or night shift work, including 12 hour continuous shifts. This is because the requirement asserted by Mr Babington is inconsistent with the statement contained in the offer of re-employment made to Mr Anderson in a letter dated 10 March 2021:

“you were previously employed by Programmed Industrial Maintenance Pty Ltd (PIM) in the position of a full-time day shift electrician (G7) performing work at Lion Dairy and Drinks (LDD) Morwell site…” 29

•  Mr May’s evidence regarding the statement made by Mr Van Der Zalm at a tool box meeting on 17 November 2020 that LDD was looking into what would happen with Mr Anderson’s job on the site, together with his unchallenged evidence that there was no statement by either Mr Van Der Zalm or Mr Morrow that Mr Anderson’s job was no longer required; and

•  There is contemporaneous email correspondence between Mr Morrow and Mr Van Der Zelm which indicates LDD was still seeking electrical tradesmen, was in dialogue with Mr Babington and that Mr Babington’s feedback was that there was an issue of not being able to recruit for a full time electrician, with Mr Morrow’s accompanying testimony. This is to be compared with Mr Babington’s evidence of having no recollection of phone calls, correspondence or related dialogue with LDD about a full-time electrical role.

[50] I am persuaded PIM was instructed by LDD to remove Mr Anderson from its Morwell site and that LDD outlined an ongoing requirement for his role to be filled. Adopting the approach outlined by the Full Bench in Christina Adams v Blamey Community Group, I am not persuaded that PIM made the decision that Mr Anderson’s job of a full-time day shift electrician (G7) performing work at the LDD Morwell site was no longer required to be performed by anyone. I am also not persuaded that the decision was made because of changes in the operational requirements of PIM.

[51] Therefore, the requirement of s 389(1)(a) of the Act has not been satisfied in this case and I must conclude that Mr Anderson’s dismissal was not a case of “genuine redundancy”. Having made this conclusion, it is then necessary for me to consider whether Mr Anderson was unfairly dismissed.

[52] A dismissal is unfair if I am satisfied, on the evidence before me, that all of the circumstances set out at s.385 of the Act existed. Section 385 of the Act provides the following:

“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.”

[53] On the basis of the material and evidence before me, I am satisfied Mr Anderson was dismissed (s.385(a)) and, as outlined above, that this was not a case of genuine redundancy (s.385(d)).

[54] As I have outlined above, it has not been contended that Mr Anderson’s dismissal was consistent with the Small Business Fair Dismissal Code (s.385(c)) and as I have found that LDD is not a small business employer within the meaning of s.23 of the Act and that the Small Business Fair Dismissal Code does not apply, it follows that it is open to me to find that it was not.

[55] That leaves s.385(b) and in determining whether the dismissal was harsh, unjust or unreasonable, I must give consideration to s.387 of the Act. Section 387 states that in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account the matters outlined below:

“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.”

Was there a valid reason for dismissal relating to Mr Anderson’s capacity or conduct? (s.387(a))

[56] PIM does not contend that there was any valid reason for dismissal related to Mr Anderson’sconduct but submitted that if my finding is that Mr Anderson’s redundancy was not “genuine”, there was nonetheless a valid reason for his dismissal because his permission to enter the site was removed by LDD. Mr Anderson disputes this and submits the actual reason for Mr Anderson’s dismissal was concerns held about his performance and further, that these concerns were ill-founded.

[57] In Donald Pettifer v MODEC Management Services Pty Ltd, 30 it was held by the Full Bench that an instruction from a client that an employee of a labour hire company providing it with labour was no longerpermitted to work on its site represented a matter that went to the employee’s capacity to work. This in turn led the Full Bench to conclude that this was a matter that required consideration pursuant to s.387(a) to determine whether or not it was a valid reason for the termination of the employee’s employment.31 In that case, the Full Bench was satisfied the contract between employer and the client obligated the employer to remove its employee from the client’s site, if instructed to do so.

[58] In this matter, PIM produced a contract between the entities LD&D Australia Pty Ltd and Programmed Skilled Workforce Limited, 32 together with an Account Management Plan.33 However, PIM is not a party to either of these documents and having considered the submissions of the parties, I am not persuaded that the terms of these documents apply. I have however noted Mr Cooke’s unchallenged evidence that:

•  The Morwell site is owned by LDD and they govern who is allowed through their access gate.

•  Anybody that PIM puts on site or that is requested to come to site has to go through the process of site access for LDD.

•  PIM cannot take people in and out or put people on site without confirmation and approval from LDD;

•  The commercial arrangement is discussed and implemented at a site level between LDD and the PIM operations team on a day-to-day basis; and

•  Notwithstanding the written set of terms and conditions, the reality is that on a day-to-day basis the discussions between LDD and PIM govern what PIM does on that site at any given time. 34

[59] Having regard to this evidence, and the fact that the location of Mr Anderson’s employment with PIM under his contract of employment was the LDD Morwell site, 35 I am satisfied that Mr Anderson’s access to LDD’s Morwell site was dependent on the approval of LDD and a matter going to his capacity to work. When LDD’s approval for Mr Anderson to enter its Morwell site was withdrawn, PIM had a valid reason to terminate his employment relating to his capacity.

[60] In the event my conclusion regarding there being a valid reason for dismissal relating to Mr Anderson’s capacityis incorrect, I am satisfied LDD’s withdrawal of his access to Morwell site can nonetheless be considered in connection with s.387(h), “any other matters the Commission considers relevant”, as outlined below.

Was Mr Anderson notified of “that reason” (s.387(b)) and given an opportunity to respond (s.387(c))

[61] Mr Anderson submitted that if I accept that his dismissal was not a genuine redundancy it will follow that he was neither notified of the reason for his dismissal nor given an opportunity to respond. However, given my finding above that LDD’s withdrawal of its approval for Mr Anderson to enter its Morwell site was a valid reason for his dismissal relating to capacity, I am satisfied, having regard to evidence given by Mr Anderson, that he was notified that LDD had asked him to leave the Morwell site on both 17 and 19 November 2020. 36 I am also satisfied that the consultation meetings on these days provided Mr Anderson with an opportunity to respond that was sufficient to satisfy the requirements of s.387(c). I am therefore satisfied that the considerations in ss.387(b) and (c) of the Act were met.

Unreasonable refusal by PIM to allow a support person – s.387(d)

[62] This consideration is irrelevant in this case. The evidence before me is that there was no unreasonable refusal by PIM to allow Mr Anderson a support person at the discussions relating to his dismissal.

Warnings regarding unsatisfactory performance – s.387(e)

[63] PIM submits that regardless of the views held by LDD, it did not dismiss Mr Anderson on the basis of unsatisfactory performance and therefore, this factor is not a relevant consideration in this case. I am satisfied that the evidence establishes PIM had not formed the view that Mr Anderson was performing in an unsatisfactory manner.

Impact of the size of the employer on procedures followed - s.387(f) and Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)

[64] I do not consider the size of PIM to have been a relevant factor in this case (s.387(f)) and I do not understand it to have been alleged or submitted that there was an absence of dedicated human resources management specialist/expertise (s.387(g)).

Other relevant matters – s.387(h)

[65] Mr Anderson submits that regardless of whether there was a valid reason for his termination his dismissal was harsh because of the impact on his personal circumstances, particularly his financial commitments, the competitive job market and his vulnerability due to his lack of training in Programmable Logic Controller (PLC) work. Mr Anderson also cited what he described as his long and successful career at PIM prior to his dismissal. I accept that the dismissal has had a negative impact on Mr Anderson.

[66] Mr Anderson further submits that PIM’s conduct was inconsistent with the Programmed Industrial Maintenance Electrical Labour Hire Enterprise Bargaining Agreement 2019-2020 (the Agreement). 37 Mr Anderson asserts that clause 9.1 of the Agreement conferred various obligations on PIM to provide him with training but they failed to do so. Mr Anderson submits this failure, in circumstances where he was actually dismissed for performance concerns, should weigh in favour of concluding that his dismissal was unfair.

[67] I did not find Mr Anderson’s evidence in relation to the alleged failure of PIM to provide training compelling. The example he cited relating to 2013 was vague. The record of the discussion he had with his manager in 2014 recorded that he sought “hands on knowledge” and a “bit more involvement in PLC projects” but he did not request formal training and stated he felt supported going forward and was “happy with current situation.” 38 Mr Anderson’s evidence that he had repeatedly asked his various supervisors for PLC training since 2015 was not corroborated by either documentary evidence or their testimony. One of the supervisors, Mr Sean Donnelly, was the subject of an order to attend I made on 12 March 2021 but Mr Anderson elected not to call upon that order. The final training request to which Mr Anderson made reference arose in the last 8 weeks of his employment with PIM. In any event, regardless of the views held by LDD, PIM did not dismiss Mr Anderson on the basis of unsatisfactory performance.

[68] Mr Anderson also relies on the dispute raised under clause 12 of the Enterprise Agreement on his behalf by his union on 18 November 2020 and submits the failure of PIM to maintain the status quo while that dispute remained unresolved weighs heavily in favour of a finding that his dismissal was unfair. Mr Anderson submits his dismissal on 19 November 2020, while the dispute remained unresolved, is a further factor weighing in favour of concluding that his dismissal was unfair. As to this, I note in filing the dispute, the relief sought related to the provision of training and a training program and consultation in relation to redundancy. I further note that at the time the dispute was filed with the Commission, PIM had already commenced a process of consultation with Mr Anderson in relation to alternative positions or redeployment and that LDD had withdrawn its approval for Mr Anderson to enter its Morwell site.

[69] The essence of Mr Anderson’s position is that PIM had an obligation to take all reasonable steps to verify the concerns expressed by LDD and if they believed they were of substance, they were obligated to take all reasonable steps to avoid the outcome which resulted in LDD refusing to permit Mr Anderson to access its Morwell site. I agree and make the additional, obvious observation that such obligation extends also to situations in which the concerns raised are without substance.

[70] Mr Anderson relied on a number of decisions of Deputy President Asbury (Jayleen Kool v Adecco Industrial Pty Ltd T/A Adecco; 39 Kim Star v Workpac Pty Ltd T/A WorkPac Group;40 John Ashley Stevens v ISS Property Services Pty Ltd T/A ISS Property Services41) in submitting that PIM was prevented from hiding behind a direction of LDD to avoid its obligations to fairly deal with any conduct or capacity issues. I note those three decisions arose out of circumstances where an employee of a labour hire or contracting company was removed from a client site due to issues of conduct. In each case, the Deputy President made findings that there was no valid reason for such an outcome. The circumstances in the matter before me differ, in that no issues of conduct arise. In Kim Star v Workpac Pty Ltd T/A WorkPac Group,42 the Deputy President stated:

“…the contractual relationship between a labour hire company and a host employer cannot be used to defeat the rights of a dismissed employee seeking a remedy for unfair dismissal. Labour hire companies cannot use such contractual relationships to abrogate their responsibilities to treat employees fairly. If actions and the consequences for an employee would be found to be unfair if carried out by the labour hire company directly, they do not automatically cease to be unfair because they are carried out by a third party to the employment relationship. If the Commission considers that a dismissal is unfair in all of the circumstances, it can be no defence that the employer was complying with the directions of another entity in effecting the dismissal.” 43 (reference omitted)

[71] I accept the proposition that if a client/host employer acts capriciously in relation to the employee of a labour hire or contracting company, the employer ought use its best endeavours to afford fairness on behalf of the employee. However, the employer cannot, in my view, be held responsible and liable for the actions of a third party which are beyond its control. Nor can an employer override the right of a third party to control access to its site. To the extent the Deputy President suggests otherwise, I respectfully disagree.

[72] Mr Anderson submitted that in this case, PIM could have addressed LDD’s concerns through training or performance management and his employment could have continued. I am satisfied that when Mr Babington first became aware that LDD considered Mr Anderson’s skills were deficient, having been told this by Mr Morrow in late October/early November 2020, his intended approach was to review, understand and assess. Having done so he determined it necessary to address LDD’s concerns by issuing Mr Anderson a formal warning based on the performance issues and then initiate a PIP and upskilling training plan. Mr Babington sought internal HR advice and requested confirmation from Mr Morrow of the “issues/gaps” of Mr Anderson that he had identified. However, by 12 November 2020, the position of LDD was that it no longer had a requirement for Mr Anderson on site due to his “skills gap” and Mr Anderson’s access to site was withdrawn. At this point, LDD did not want its concerns regarding Mr Anderson addressed through training or performance management. It no longer wanted to have any dialogue regarding Mr Anderson at all or to have him work on its site. Once LDD, the commercial client, had arrived at this position, there was no alternative for PIM but to explore redeployment because under his contract of employment, Mr Anderson’s job location was LDD’s Morwell site. PIM could not force Mr Anderson upon LDD. This is simply the commercial reality of labour hire arrangements.

[73] Mr Anderson submits that the evidence establishes that it would have been reasonable in all the circumstances for him to be redeployed and that PIM failed to properly consider the positions in Albury/Wodonga and Port Melbourne. On 17 November 2020, Mr Anderson was advised that PIM would endeavour to look for alternative positions and/or redeployment options across the ‘Programmed Group’ and he was invited to undertake the same process and consider any available, alternative advertised positions. Mr Anderson then met with Mr Cooke and Mr Babington on 19 November 2020 with his support person, Mr Liley. In preparation, PIM had undertaken a process described by Mr Cooke as involving looking at different areas of the Programmed Group for redeployment opportunities that might be suitable in terms of pay, location, full-time status and classification. 44  Mr Cooke also said that at the second meeting, in this case the meeting on 19 November 2020, PIM would ask whether the employee had identified anything outside of those categories.45

[74] In this matter. Mr Anderson identified a position in Port Melbourne. It was a position involving casual employment. It would appear that it was conveyed to Mr Anderson that because PIM did not consider it to be a comparable position to that which he had held at LDD’s Morwell site, Mr Anderson was able to apply without losing his entitlement to the redundancy pay. 46 Mr Liley gave evidence that he discovered a position in Albury/Wodonga during the meeting on 19 November 2020. The evidence of the various meeting participants in relation to the Albury/Wodonga position differs:

•  Mr Cooke said that Mr Anderson said he would not relocate to Albury/Wodonga because he had his partner's circumstances to take into consideration; 47

•  Mr Babington said that Mr Anderson said the Albury/Wodonga role was not suitable, because it did not suit him and his partner's circumstances; 48

•  Mr Liley said there was virtually no discussion regarding the Albury/Wodonga position and when Mr Anderson made the comment that he would have to take his partner into account, he thought it was made in relation to the Port Melbourne position; 49 and

•  Mr Anderson said that in response to the Albury/Wodonga position he said he would have to talk to his partner.  50

[75] I do not consider Mr Liley’s evidence on this part of the conversation assists. I accept that Mr Anderson did not know about the Albury/Wodonga position in advance and the circumstances of his partner would have been of significance. I note that both Mr Cooke and Mr Babington gave evidence that Mr Anderson was offered the opportunity to discuss the Albury/Wodonga position with his partner, but he told them relocation was not an option. I also observe that Mr Babington produced an extract from his diary from 19 November 2020 which has a cross marked next to a handwritten note “Wodonga/Albury” and says he made that annotation immediately after Mr Anderson rejected the Albury/Wodonga position.  51

[76] Ultimately, I am satisfied the consultation process regarding redeployment that was adopted by PIM was reasonable in all the circumstances and should not be a factor that weighs in favour of a finding that his dismissal was unfair. PIM tried to locate a comparable position for Mr Anderson at a time when it had just made a number of electrical employees redundant at the Boeing and Patricks Terminal sites in Melbourne. 52 While there is a dispute between the parties as to the response given by Mr Anderson to the Albury/Wodonga position, I consider it significant that in circumstances in which he proposed, following a break in the discussion on 19 November 2020, that he be authorised to take long service leave as an alternative to dismissal, neither Mr Anderson nor Mr Liley implored PIM to also delay a final decision regarding dismissal until after he had been given an opportunity to discuss the Albury/Wodonga position with his partner. Regardless of what Mr Anderson’s initial response to the Albury/Wodonga position was, PIM had provided the forum for such a proposal to be raised by Mr Anderson or Mr Liley, they having been confronted with PIM’s stated intention to dismiss Mr Anderson. Finally, having regard to the evidence relating to the paucity of employment vacancies and opportunities since Mr Anderson’s dismissal, I do not consider the decision of PIM to not authorise the taking of long service leave weighs against it.

[77] In summary, I do not find that the matters raised as part of the consideration of s.387(h) of the Act are sufficient to render Mr Anderson’s dismissal harsh, unjust or unreasonable.

Conclusion

[78] For the reasons outlined above, I find that Mr Anderson’s dismissal does not fall within the definition of a ‘genuine redundancy’ in s.389 of the Act because the requirement of s.389(1)(a) of the Act has not been satisfied. However, having considered each of the matters specified in s.387 of the Act, I am satisfied the dismissal of Mr Andersonwas not harsh, unjust or unreasonable.

[79] Accordingly, I find that Mr Anderson’s dismissal was not unfair. Mr Anderson’s application for unfair dismissal remedy is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

Y Bakri of Counsel on behalf of Mr Anderson.
L R Howard of Counsel on behalf of Programmed Industrial Maintenance Pty Ltd.

Hearing details:

2021.
Melbourne:
March 17–18 (via Microsoft Teams), May 18.

Printed by authority of the Commonwealth Government Printer

<PR731566>

 1   PR727129, PR727117

 2   PR 727494, PR 727496

 3   Transcript 17 March 2021 at PN614-620.

 4   Attachment PIM 20 to Statement of Mr Kenny Babington dated 14 April 2021.

 5   DCB at p.218.

 6   DCB at p.220.

 7   DCB at p.221.

 8   Exhibit A10.

 9   DCB at p.134-135.

 10   Transcript 17 March 2021 at PN 287-288.

 11   Transcript 18 May 2021 at PN 2224–2227.

 12   Transcript 18 May 2021 at PN 2281.

 13 DCB at p.39 at [16].

 14 Exhibit A9 at [13].

 15   Transcript 18 May 2021 at PN 2289.

 16   Transcript 18 May 2021 at PN 1973.

 17   Transcript 18 May 2021 at PN 1771, PN 1911 and PN 1913.

 18   Transcript 17 March 2021 at PN 354.

 19   Transcript 17 March 2021 at PN 1091–1094.

 20   Transcript 17 March 2021 at PN 1098–1101.

 21   Attachment PIM 20 to Statement of Mr Kenny Babington dated 14 April 2021.

 22   Transcript 17 March 2021 at PN 356.

 23   Attachment PIM 21 to Statement of Mr Kenny Babington dated 14 April 2021.

 24   Attachment MM-3 to Statement of Mr Matthew Morrow dated 14 May 2021.

 25   Transcript 18 May 2021 at PN 1892, PN 1894 and PN 1895-1897.

 26   [2016] FWCFB 7202.

 27   [2014] FWC 7829 at [16].

 28   [2016] FWCFB 7202 at [14].

 29   DCB at p.129.

 30   [2016] FWCFB 5243.

 31 Ibid at [32].

 32   Attachment PIM 6 to Exhibit R2 at DCB 68.

 33   Attachment PIM 7 to Exhibit R2 at DCB 104.

 34   Transcript 17 March 2021 at PN 131-133.

 35   DCB at p.218 and 221.

 36  DCB at p.210 at [29] and DCB at p.212 at [39] and [41].

 37   [2019] FWCA 6345.

 38   DCB at p.300.

 39   [2016] FWC 925.

 40   [2018] FWC 4991.

 41  [2020] FWC 1340.

 42   [2018] FWC 4991.

 43   Ibid at [99]

 44   Transcript 17 March 2020 at PN 126.

 45   Ibid.

 46   DCB at p.48 at [39] and Transcript 17 March 2020 at PN 816.

 47   Transcript 17 March 2020 at PN 130.

 48   Ibid at PN 343.

 49   DCB at p.318-319 at [30] and [31], DCB at p.342 and DCB at p.345 and Transcript 17 March 2020 at PN 936-944.

 50 DCB at p.213 at [43].

 51  DCB at p.137 at [27](b) and DCB at p.127.

 52   DCB at p.145 at (o).