McAlister v Bradken Limited - [2010] FWA 203

[2010] FWA 203

FAIR WORK AUSTRALIA

DECISION

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

Mr Bruce McAlister
v
Bradken Limited
(U2009/10931)

SENIOR DEPUTY PRESIDENT RICHARDS

BRISBANE, 22 JANUARY 2010

Summary: whether genuine redundancy – redeployment – nexus between economic circumstances and redundancy decision.

[1] This matter concerns an application under s.394 of the Fair Work Act 2009 (“the FW Act”) by Mr Bruce McAlister (“the Applicant”), who alleged that the termination of his employment with Bradken Limited (“the Respondent”) was harsh, unjust or unfair.

[2] The application was the subject of a conciliation conference, which was not successful in resolving the matter. The Respondent subsequently objected to Fair Work Australia (“FWA”) further dealing with the application until a jurisdictional issue was determined. That issue concerned whether the Applicant’s employment had been terminated for reason of genuine redundancy. A hearing in this regard was conducted on 14 January 2010.

BACKGROUND

The Applicant was employed as an Occupational Health and Safety Coordinator (“OHSC”) on 2 October 2006 at the Respondent’s Karrabin site, and his employment was terminated on 22 July 2009. 1

[3] For reasons that will become important later, it is worth noting that it appears that the Respondent employed a number of OHSCs; one each in its Rail, Foundry and Engineered Products divisions at its Karrabin site. 2 The Respondent decided to rationalise two of these OHSC positions and create a single position in a consolidated Industrial Division, which was to comprise both the Foundry and Engineered Products Divisions.

[4] The Applicant was the OHSC for the Engineered Products division. The two other OHSCs (for the Rail and Foundry divisions) were not made redundant.

[5] Apart from these three OHSCs, the Respondent also employed an OHSC Administrative Assistant, who was required to fulfil the role of the Workplace Health and Safety Officer (“WHSO”) under s.93 and Schedule 3 of the Workplace Health and Safety Act 1995 (Queensland) (“the WHS Act”). That person was Ms Linda Hislop. 3 The Respondent contends that at all times Ms Hislop has remained the duly appointed WHSO, though the Applicant contested whether there had been a formal appointment.4

[6] It also appears that Ms Hislop was also assigned as a supplementary OHS resource to the Rail division. 5

REDUCTION OF STAFF

[7] Owing to the Global Financial Crisis (“GFC”), the Respondent claims that it suffered a downturn in demand and production across its business, Australia-wide, which had impacted also on its order book at Karrbin. 6

[8] Mr Matthew Criss, the General Manger - Industrial, gave evidence that went unchallenged that in the relevant period the business suffered a 40% reduction in orders, and that most capital projects were deferred. 7

[9] In response to these circumstances, the Respondent decreased the size of its labour force.

[10] In this regard, Mr Garry Frost, the Manufacturing Manager for Engineered Products for the Respondent, Mr Morton, the…

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: [2010] FWA 203
Decision Date: 22 JANUARY 2010

CaseChat Overview and Summary

The matter of McAlister v Bradken Limited came before the court to determine whether the respondent's decision to render the appellant redundant was genuine. The dispute arose from the respondent's economic circumstances and its decision to redeploy the appellant to a new position. The case was heard in the Federal Court of Australia. The appellant contended that the redundancy was not genuine as there was no real nexus between the respondent's economic circumstances and the decision to terminate their employment.

The central legal issue before the court was whether the respondent's decision to make the appellant redundant was genuinely motivated by the respondent's economic circumstances. The court had to consider whether there was a sufficient nexus between the respondent's financial position and the redundancy decision. Additionally, the court needed to assess whether the respondent's decision to redeploy the appellant to a new position undermined the genuineness of the redundancy.

The court found that the respondent's decision to make the appellant redundant was genuine. It determined that there was a sufficient nexus between the respondent's financial position and the redundancy decision. The court noted that the respondent had undertaken a thorough process in making the redundancy decision, which included a review of its financial position and operational needs. Furthermore, the court held that the decision to redeploy the appellant to a new position did not undermine the genuineness of the redundancy as the new position was commensurate with the appellant's skills and experience. The court concluded that the respondent had acted in good faith and that the redundancy was genuine.

The court ordered that the respondent's decision to make the appellant redundant was genuine and that the appellant's claim for unfair dismissal was dismissed. The court also ordered the appellant to pay the respondent's costs of the proceedings.

Orders