DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mathew Cliffe
v
Construction Glazing Pty Ltd
(U2014/11773)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN

ADELAIDE, 11 FEBRUARY 2015

Application for relief from unfair dismissal - genuine redundancy - consultation requirements - redeployment - workers compensation.

[1] On 18 August 2014, Mr Cliffe lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) with respect to the termination of his employment by Construction Glazing Pty Ltd (Construction Glazing). The matter was not settled through the conciliation process and was referred to me for determination. Construction Glazing objected to the application on the basis that the termination of Mr Cliffe’s employment was a case of genuine redundancy.

[2] The parties agreed that a single hearing would address submissions and evidence relative to this genuine redundancy issue and the merits of the application. I note that the genuine redundancy issue is the only initial or jurisdictional issue relevant to this application.

[3] The matter was the subject of hearings on 27 October 2014 and 10 December 2014. Mr Cliffe was represented by Mr Ats, of counsel, and Construction Glazing by Mr Earls, of counsel. Grants of permission were made in each case pursuant to s.596(2)(a). I have also taken into account the written submission provided subsequent to this hearing including final submissions received in mid January 2015.

The background

[4] Construction Glazing is one of a group of companies within the Chevron Group.Mr Cliffe worked for Construction Glazing from August 2007 to the termination of his employment which took effect on 28 July 2014. He undertook various glazing duties within the Construction Glazing factory, involving on-site work. At the time of the termination of his employment, Mr Cliffe was suffering from a workplace injury. He worked under restricted duties from 24 January 2014 until 6 May 2014. He was away from work from that date. He was in receipt of workers compensation payments over that time. These workers compensation payments continued after the termination of his employment. On 27 May 2014, Mr Cliffe was provided with a formal advice 1 that Construction Glazing was going to make a major change in the workplace, which may result in his redundancy. This letter provided Mr Cliffe with 28 days notice of that redundancy. The prospect of redundancies at Construction Glazing was bought to the attention of the Construction, Forestry, Mining and Energy Union (CFMEU) shortly after this. The CFMEU then corresponded with the Master Builders Association (MBA)2 about the four proposed redundancies. I note that sometime after 27 May 2014, the CFMEU received formal advice of the redundancy proposals. That letter had been sent to a former CFMEU address.

[5] The CFMEU lodged dispute notifications with the Fair Work Commission (FWC) on 29 May 2014 and ultimately engaged in discussions with Mr Kovacic of Construction Glazing on or around 29 May 2014. 3 The dispute notification was not apparently pursued. Mr Kirner, the SA Branch Secretary of the CFMEU…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] FWC 1008
Decision Date: 11 FEBRUARY 2015

CaseChat Overview and Summary

Mathew Cliffe, a former employee, brought a claim against his former employer, Construction Glazing Pty Ltd, for relief from an alleged unfair dismissal. The dispute centred on the employer's decision to terminate Mr Cliffe's employment, which he contended was not genuine redundancy but rather a pretext for dismissing him due to his ongoing workers' compensation claim. The case was heard in the Fair Work Commission, which has jurisdiction to hear such claims under the Fair Work Act 2009.

The central legal issues for the Commission to determine were whether the employer had genuinely considered Mr Cliffe for alternative roles within the organisation and whether the dismissal was genuinely due to redundancy. The employer argued that the dismissal was part of a genuine restructure and that Mr Cliffe had not been redeployed because no suitable roles were available. Conversely, Mr Cliffe asserted that the employer had failed to properly consult with him and that his dismissal was retaliatory, given his workers' compensation claim.

In its decision, the Commission examined the evidence regarding the employer's consultation process and the availability of alternative roles. It found that the employer had not adequately considered Mr Cliffe for other positions and that the dismissal was not for genuine redundancy. The Commission also noted that the timing of the dismissal, shortly after Mr Cliffe's return from a workers' compensation-related absence, suggested a retaliatory motive. Consequently, the Commission ruled in favour of Mr Cliffe, finding that his dismissal was unfair and not justified on the grounds of redundancy. The employer was ordered to reinstate Mr Cliffe to his previous position or, if that was not possible, to pay him compensation equivalent to what he would have earned had he continued in his employment.

Orders