Michael Vonja v Adcon Resources Vic Pty Ltd
[2023] FWC 3399
•21 DECEMBER 2023
| [2023] FWC 3399 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Michael Vonja
v
Adcon Resources Vic Pty Ltd
(U2023/6694)
| COMMISSIONER YILMAZ | MELBOURNE, 21 DECEMBER 2023 |
Application for an unfair dismissal remedy – whether there was genuine redundancy -whether the Applicant surpassed the high-income threshold – jurisdictional objections dismissed -compensation ordered.
On 21 July 2023, the Applicant, Mr Michael Vonja made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that he had been unfairly dismissed from his employment with the Respondent, Adcon Resources Victoria Pty Ltd (Adcon). He seeks a remedy of compensation.
It is not in dispute that the application meets required of minimum employment period and coverage under an enterprise agreement pursuant to s.382 of the Act. Additionally, Adcon is not a small employer and therefore not covered by the Small Business Unfair Dismissal Code.
Adcon however raised two jurisdictional objections to the application:
The dismissal was a genuine redundancy, and
Mr Vonja’s remuneration exceeded the high-income threshold.
At the case management hearing on 8 September 2023, Adcon was represented by Mr Jeffrey Perkins of Irish Bentley Lawyers (IBL) having filed a form F53 the day prior. Adcon’s legal representative appeared on his own without a representative of Adcon. At the hearing Mr Perkins advised that he would confirm whether the second objection would be pursued after obtaining instructions from his client. On 14 September 2023, my chambers received an email advising that Adcon did not intend to press the second jurisdictional objection but maintained the first.
Directions for the filing of materials was issued promptly after the case management hearing on 8 September 2023. Mr Vonja filed his submissions in accordance with the directions.
The Respondent was reminded that their submissions were due on 24 October 2023, when they failed to file the day before. On receipt of an out of office email, a reminder to file submissions was resent to an alternative email address of Adcon’s Representative on the same day. A response was received advising the matter had been allocated to another lawyer at IBL and that a response would be provided shortly. No response was provided that day, so on 25 October 2023, a further reminder was sent advising submissions were late by two days. In response on the same day, an email advising that “as a result of extensive redundancies Adcon had difficulty contacting witnesses and preparing material which was the reason for failing to file submissions.”[1] No further information was provided by Adcon’s Representative other than further instructions were being sought.
Awareness of the scheduled Member Assisted Conciliation conference was confirmed when Adcon’s Representative sought clarification of the different time zone on 26 September 2023. The Member Assisted Conciliation did not proceed as neither Adcon nor Adcon’s representative attended on 31 October 2023.
On 31 October 2023 all parties were reminded that the Hearing would proceed as the matter did not resolve at the Member Assisted Conciliation. Details regarding appearances in person and via video were again emailed to the parties. A further reminder of the Hearing was sent along with the Court Book on 1 November 2023.
At the Hearing, Mr Vonja gave evidence and was represented by the CFMEU. The Respondent did not attend, however Mr Zeke Bentley of IBL attended by phone. Mr Bentley was unprepared and without the benefit of any instructions having only been informed of the file at the commencement of the hearing. Mr Bentley’s request for an adjournment was opposed by the CFMEU and denied on the basis that ample notice was given to the parties to file their materials, including regular reminders to Adcon which went unanswered.
I proceeded to hear the matter without any material from Adcon. On the matter of remedy, Adcon was given further time to file written submissions and Mr Vonja was provided an opportunity to reply.
Background
Mr Vonja was employed by Adcon on 12 May 2021 in the position of site foreman. On 30 June 2023, he received a phone call from the Construction Manager to meet and was then advised, without any prior notice, that he was dismissed because he had not managed the site to Adcon’s satisfaction.[2] Mr Vonja submits the dismissal was lacking in any procedural fairness and challenges the reason or reasons for the dismissal. He seeks compensation.
In their form F3, Adcon state that Mr Vonja was an employee covered by its Enterprise Agreement (the Agreement), it confirmed the same date of commencement of employment and the date Mr Vonja was informed of the dismissal. The form F3 provides that the dismissal took effect on 3 July 2023.[3] It raised the jurisdictional objection that the dismissal was a genuine redundancy. It states that it has been “downsizing due to a reduction of works over the past six months, the employee was made redundant as part of this process.”[4] Further in support of the jurisdictional objection, Adcon states the dismissal was a genuine redundancy as the required notice was provided, as per clause 19 of the Agreement and the employee was marked as genuinely redundant for the purposes of the Incolink entitlement scheme.[5] In response to Mr Vonja’s statements in the form F2, Adcon disputes that the reason for dismissal was that the site was not managed to its satisfaction and also disputes that written notice of dismissal was not given, stating that all required notices had been met.
Submissions of the Applicant
Mr Vonja submits that a genuine redundancy is defined by ss.389(1) and 389(2) of the Act. He submits that his dismissal was not a genuine redundancy because Adcon still required the job of site foreman to be performed. He further submits that the project in which he was employed was ongoing and the site foreman holds a critical leadership position which coordinates the work on a daily basis. He adds that another employee began to perform his duties of site foreman shortly after his dismissal.
In respect to the consultation obligations under the industrial instrument, he submits the relevant enterprise agreement was the ADCON RESOURCES VIC PTY LTD and the CFMEU (Victorian Construction and General Division) Subcontractors Formwork Enterprise Agreement 2020-2023 (the Agreement). The relevant provisions concerning termination due to redundancy are as follows:
‘19 Redundancy
19.1 Subject to the following procedure, it is agreed that it is the Employer's prerogative to determine the order of selection of Employees for employment or retrenchment.
19.2 All relevant legislation governing unfair dismissal, discrimination etc. will be observed.
19.3 Voluntary terminations will be encouraged as a first step.
19.4 The seniority of Employees - within classifications, experience or skills held will be observed by the Employer in selecting Employees for retrenchment.
19.5 The dispute settlement procedures set out in Part 2 will apply in the event of any concerns arising regarding retrenchments.
19.6 An Employee is entitled to access his/her redundancy payments when they cease to be employed by the Employer. The amount of the redundancy payment shall be whichever is the greater of the entitlement due under the Building and Construction General On-site Award 2010 as in force from time to time or the entitlement of the Employee under the Nominated Redundancy Fund trust deed (or under the constituting documents of any fund nominated by Incolink under this clause).
Note that the industry-specific redundancy scheme prescribed by the Building
and Construction General On-site Award 2010 as in force from time to time is
expressly incorporated into this Agreement (including for clarity, in respect of
work falling within the scope of clause 4.2).’
‘11 Consultation
Major Workplace Change
11.1 If the Employer has made a decision to introduce a major workplace change that is likely to have a Significant Effect on a number of Employees, the Employer must notify the Employee(s) who will be affected by the decision. As soon as practicable and prior to implementation, the Employer must discuss with the relevant Employees and/or their nominated representative/s (e.g. Union or other representative) the introduction of the change; and the effect the change is likely to have on the Employees. The Employer must discuss measures to avert or mitigate the adverse effect of the change on the Employees.
11.2 For the purposes of the discussion the Employer will provide the relevant Employees and/or their nominated representative/s in writing:
(a) All relevant information about the change including the nature of the change proposed;
(b) Information about the expected effects of the change on the Employees; and
(c) Any other matters likely to affect the Employees.
However, the Employer is not required to disclose confidential or commercially sensitive information.
The Employer must give prompt and genuine consideration to matters raised about the major change by the relevant Employees.
11.3
(a) "Significant Effects" under this clause 11 include termination of employment (including redundancy), major changes in the composition, operation or size of the Employer's workforce or in the skills required, the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of Employees to other work areas or locations and the restructuring of jobs.
Consultation about changes to rosters or hours of work
11.4 Where the Employer proposes to change an Employee's regular roster or ordinary hours of work, the Employer must consult with the Employee(s) affected and, if required their representative, about the proposed change.
11 .5 As soon as practicable after proposing to introduce the change, the Employer must:
(a) discuss with the relevant Employees the introduction of the change; and
(b) for the purposes of the discussion, provide to the relevant Employees and their representative if requested by the Employees:
(i) all relevant information about the change, including the nature of the change; and
(ii) information about what the Employer reasonably believes will be the effects of the change on the Employees; and
(iii) information about any other matters that the Employer reasonably believes are likely to affect the Employees; and
(c) invite the Employee(s) affected and any applicable representatives, to give their views about the impact of the proposed change (including any impact in relation to their family or caring responsibilities); and give consideration to any views about the impact of the proposed change that are given by the Employee(s) concerned and/or their Union.
(d) The requirement to consult under this clause does not apply where anv Employee has irregular, sporadic or unpredictable working hours.
11.6 These provisions are to be read in conjunction with other Agreement or Award
provisions concerning the scheduling of work and notice requirements.’
It is contended that there was no consultation, Mr Vonja’s seniority was not considered for the purpose of selection nor any steps taken to reasonably redeploy, particularly taking into account the size of Adcon’s group of companies. The Agreement provides for one day’s notice for daily hire tradespeople and this appears to explain the difference in dates listed in the form F3 and the Employment Separation Certificate. The dismissal was immediate on 30 June 2023, but the final day of employment is recorded as 3 July and payment of wages and entitlements are up to 3 July 2023.
Mr Vonja then turned to the provisions of s.387 of the Act. It is submitted that nothing in Mr Vonja’s performance or conduct gave rise to a valid reason, there was no correspondence setting out reasons nor were there any allegations that led to the dismissal and in a meeting following the dismissal, other possible reasons were given which challenge the reasons provided in Adcon’s form F3.
Concerning process, Mr Vonja contends that it was devoid of any procedural fairness and the dismissal was harsh.
Mr Vonja gave witness evidence that there was no disciplinary action against him either in his career or during his employment with Adcon. On 30 June 2023 at around 10.15am he received a telephone call from Kevin Dwyer, Construction Manager asking him to meet him at the site. At around 10.20am Mr Dwyer privately informed Mr Vonja that he was dismissed effective immediately because management were not happy with the way the project had been managed. Mr Dwyer refused to continue the discussion in the presence of the union representative when Mr Vonja requested that he be accompanied to the office a number of times so that his union representative could witness the discussion. Mr Dwyer then walked away.
Mr Vonja submits that there was no warning of an impending dismissal, no opportunity to respond and he was denied the opportunity of a support person.
In terms of the alleged reason of genuine redundancy, Mr Vonja submits that it is not a genuine redundancy as the job continues to exist, there was no consultation in accordance with the Agreement and no effort was made to redeploy, which it would have been reasonable to do so within the enterprise or in a related entity.
Mr Vonja further detailed the discussion between himself, his representatives and Adcon 20 days after the dismissal where further reasons were provided. These reasons were assessed during the cross examination of Mr Vonja. These reasons relate to allegedly bad mouthing Adcon, where he allegedly told the Construction Manager that it was not his job and alleged statements made regarding his hours of work.[6] During cross examination Mr Vonja provided context for each of the alleged incidents and demonstrated that none of the reasons advanced at the 20 July 2023 meeting by Adcon had any substance for a valid reason to dismiss.
Regardless, I do observe that Adcon does not rely on these reasons for the dismissal in their form F3. In addition, there was no evidence to support any of the reasons given at the meeting, therefore I need not consider the validity of them as reasons for dismissal.
Mr Vonja tendered in evidence an additional witness statement concerning his earnings following the dismissal,[7] the employment separation certificate[8] and various payslips.[9]
Submissions of the Respondent
No evidence was led by Adcon, nor any submissions tendered. While Mr Bentley cross examined Mr Vonja there was no challenge to the substantive evidence in chief nor to the credibility of the witness.
Was the dismissal harsh, unjust or unreasonable?
Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, I 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 Commission considers relevant.
I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[10]
Consideration
Was there a valid reason for the dismissal related to the conduct?
In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well-founded.”[11] Further it is the role of the Commission to consider the employer’s reasoning to determine whether that reasoning is valid.[12]
While Adcon submits in their form F3 that the dismissal was a genuine redundancy, no evidence was led to support this position. Mr Vonja gave evidence that there were no prior discussions or events before 30 June 2023 when, without notice, he was asked to meet with the Construction Manager and informed that he was immediately dismissed. The reasons for the dismissal at that point was that management were not happy with the way the project had been managed. There was no discussion about redundancy, alternative positions considered or any information given regarding the future of the project. However, Mr Vonja gave evidence that he was informed by the Construction Manager that the Company would tick the box for genuine redundancy.[13]
In the form F3 Adcon submits that it was downsizing in the six months prior to Mr Vonja’s dismissal, yet no evidence from either party supported this submission. Adcon further submits that all notices required by clause 19 of the Agreement had been met. However, no materials were submitted to support this.
Clause 11 of the Agreement requires that the employer notify employees and/or their nominated representative of the introduction of a change which will have significant effects[14] on an employee, it must discuss measures taken to avert or mitigate the change and provide further particulars in writing. Mr Vonja contends that these requirements were not met and Adcon had no evidence in support. On this basis, I cannot find that the requirements under the Agreement were met, nor can I find that the dismissal was a case of genuine redundancy to satisfy the jurisdictional objection under s.389(1). Section 389(1) of the Act defines genuine redundancy for the purpose of the jurisdictional question as follows:
Under s.389(1) of the Act, a person’s dismissal was a case of genuine redundancy if:
(a) the 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.
Mr Vonja gave evidence that his position was integral to the continuation of the project and that he was replaced following his dismissal. He further gave evidence that there was no forewarning of any possible redundancy, nor was he aware of any other redundancies in relation to his project.
Further s.389(2) of the Act provides that a dismissal is not a genuine redundancy if redeployment was reasonable. Mr Vonja gave evidence that no discussion took place regarding redeployment, and, due to the size of the Respondent in either its own enterprise or in a related entity redeployment may have been reasonable, although no evidence was tendered to support compliance with s.389(2) of the Act.
On the basis that there was no evidence to find the dismissal was a case of genuine redundancy, I do not so find.
In relation to the reasons given on 30 June 2023 that “management were not happy with how the project had been run” goes to performance. Mr Vonja gave evidence that there was no prior performance issues raised with him, no warnings given and the meeting together with the reasons given on 30 June 2023 came as a surprise.[15] No other evidence challenged this evidence of Mr Vonja. On this basis, I cannot find that Adcon had a valid reason for the dismissal.
Was the Applicant notified of the valid dismissal?
Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,[16] in explicit,[17] plain and clear terms.[18]
I am satisfied that Mr Vonja was not given any notification of the reason for his dismissal prior to the discussion at the impromptu meeting of 30 June 2023, where he was simply informed of the final decision to immediately dismiss him.
Was he given an opportunity to respond to any valid reason raised in relation to his conduct?
An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.[19]
The opportunity to respond does not require formality and this factor is to be applied in a common-sense way to ensure the employee is treated fairly.[20] Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.[21]
There was no evidence of an opportunity for Mr Vonja to respond to the reason given for his dismissal. The undisputed evidence of Mr Vonja was that immediately on attending the meeting location he was told words to the effect “I am the bearer of bad news, you are dismissed effective immediately”. In answer to the question why, he was informed “Management are not happy with the way the project has been managed.” It became apparent to Mr Vonja that a meeting occurred between senior management and a decision was made without any capacity for him to influence the outcome, the decision was final.
Did the Respondent unreasonably refuse to allow the Applicant to have a support person present?
I am satisfied that Adcon did unreasonably refuse to allow a support person. Mr Vonja requested from the Construction Manager that the discussion continue in the site office where his union representative was located. This repeated request was refused.[22]
Was he warned about unsatisfactory performance before the dismissal?
There is no evidence of performance warnings and I observe that Adcon relies on the reason of genuine redundancy. In any event there is no evidence of any reason given before the actual dismissal on 30 June 2023.
To what degree would the size of the enterprise and degree of human resource expertise be likely to impact on the procedures followed in effecting the dismissal?
Adcon is not a small employer and there is no evidence of any human resources expertise relied upon by Adcon, nor any evidence on the likely impact on the procedure. This consideration therefore is neutral.
What other matters are relevant?
Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.
Mr Vonja submits the impact of the dismissal was harsh, particularly considering the good performance record and procedurally unfair manner of the dismissal. He submits that the dismissal had a severe impact on his mental health. He gave evidence that he contacted the senior manager responsible for the decision but his call was not answered nor was he called back. As he caught public transport into work, he had to return the next day to collect his personal belongings. He did visit his medical practitioner due to the effect of the dismissal on his mental health. On 3 July 2023 Mr Vonja received a separation certificate stating the reason for dismissal as redundancy.[23]
A dismissal, particularly without any notice of concerns regarding performance, conduct or a possible redundancy can by its very nature be upsetting for an employee. In this instance Mr Vonja had no notice, but also was given conflicting reasons for the dismissal. It is probable that the decision to dismiss Mr Vonja was made based on performance, although none of these performance concerns were raised with him. Had Adcon done so, Mr Vonja would have had an opportunity to influence the outcome and Adcon would have the benefit of the additional information before making its decision, especially in light of his explanations which were revealed during cross examination. In addition to the absence of a fair process, Mr Vonja had to return the following day to retrieve his personal belongings. The manner in which Mr Vonja was dispensed added to the harshness.
Harsh, unjust or unreasonable?
I have considered each matter specified in section 387 of the Act, against the evidence before me, I have considered whether the dismissal was harsh, unjust or unreasonable. I have weighed up all of the circumstances of the case.
I have found that Adcon’s jurisdictional objection of genuine redundancy cannot be upheld as there is no evidence of compliance with s.389(1) of the Act in the first instance, the reason for dismissal on the separation certificate was redundancy but the reason given to Mr Vonja on 30 June 2023 was performance related. There is no evidence to support any action to redeploy or mitigate the dismissal, nor any evidence of prior warnings regarding performance. The balance of the criteria concerning harshness in s.387 of the Act were lacking from Adcon with only one consideration being neutral. The actual dismissal was without warning and performed without any thoughtfulness towards Mr Vonja. The reason advanced by Adcon was genuine redundancy but appears to have been a decision based on performance. As there was no evidence of any prior performance related issues that were brought to Mr Vonja’s attention, I cannot find there is a valid reason for dismissal. On consideration of the criteria, I therefore do find the dismissal to be unfair, harsh and unjust.
I am satisfied that all of the circumstances do weigh in favour of finding that the dismissal was harsh, unjust or unreasonable. Having found the dismissal unfair, I now turn to remedy.
Remedy
Mr Vonja is not seeking reinstatement. He submits the manner of his dismissal cannot be overcome and that he started a new job on 8 September 2023 as a casual labourer.
I agree that reinstatement is not appropriate and an order for compensation to be fitting.
In considering compensation I am required by Section 392(2) of the Act to consider the following:
“(2) In determining an amount for the purposes of an order under subsection (1), FWA must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that FWA considers relevant.”
Mr Vonja’s evidence of final pay shows payment of one day notice, outstanding wages and payment of leave entitlements. Liabilities for superannuation, Incolink contribution and tax were met.[24]
Adcon submits that the difference in weekly pay between Mr Vonja’s earnings with old and new employer is -$1,189.49 per week and in accordance with the relevant enterprise agreement the amount of compensation should be between one day and 20 days, or in the alternative one month or three months which represents the period of unemployment. Adcon challenges an award of compensation of six months being the maximum remedy and further submits that the evidence shows that significant redundancies were implemented, and this demonstrates a “lack of intent in initiating the termination, which was not oppressive”.[25]
In the alternative Mr Vonja submits that the purpose of the compensation is to compensate the employee and not punish Adcon,[26] and challenges the submissions of Adcon in terms of the amount of compensation to be awarded.
It is appropriate to reiterate the evidence before the Commission. Mr Vonja was paid one day’s notice, he was immediately dismissed without warning on 30 June 2023. No written notice of termination was received other than an employment separation certificate on Monday 3 July 2023 which noted redundancy and this was in contrast to the reason given on the Friday. While the certificate stated the reason of redundancy, the project on which Mr Vonja was engaged continued and he was replaced in his job. In the building industry, projects conclude and redundancies occur, however, the evidence was not that the project in question concluded. There is no evidence or legal principle to limit compensation to one or three months as recommended by Adcon. The dismissal was devoid of any fairness, it was manifestly unfair and unjust. For this reason, Mr Vonja is entitled to a remedy of compensation.
The first of the matters to consider under s.392(2) is the effect of the order on the viability of the employer’s enterprise. Adcon did not address this matter. Adcon is not a small business and there is no evidence to consider in terms of the effect of an order.
The second consideration is the length of employment. Mr Vonja commenced employment on 12 May 2021 and employment ceased on 3 July 2023, representing a period of just over twoyears.
The third consideration is the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed. Mr Vonja submits that he would have continued in employment for at least the maximum period of 26 weeks. In this regard, it is submitted the projected remuneration at the rate of $4125 per week is $107,252.50 gross. The superannuation applicable is $6,860.46. I do not disagree, there is no contested evidence.
The fourth consideration is the efforts to mitigate the loss suffered by Mr Vonja. Mr Vonja gave evidence that he searched for employment and secured casual work which he hoped would lead to permanent work.[27]
The fifth consideration is the amount of any remuneration earned by Mr Vonja from employment between the dismissal and the making of the order for compensation which amounted to $23,484.09 and $2,240 in superannuation.
The sixth consideration is the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation. In this regard I do consider that Mr Vonja’s employment would continue and in the remaining five weeks of the maximum compensation period he would have earned $14,677.56 which represents the average pay earned over the period of disclosed income. This amount and superannuation contributions should be taken into account.
Lastly the Commission may take into account any other matter that it considers relevant. No other matter was raised to be taken into consideration.
Therefore, I do order compensation of $69,089.35 less applicable tax and superannuation of $3,079.31.
Conclusion
Having considered all the relevant factors, I am satisfied that the dismissal was harsh, unjust or unreasonable. I am satisfied that Mr Vonja was unfairly dismissed within the meaning of s.385 of the Act.
I have calculated a compensation figure which is to be paid to Mr Vonja within 14 days less applicable tax.
An Order[28] to this effect will be issued concurrently with this decision requiring the payment of this compensation less appropriate taxation within 14 days.
COMMISSIONER
Appearances:
Mr N. Grealy for the Applicant.
Mr Z. Bentley for the Respondent.
Hearing details:
Friday 3 November 2023
Melbourne
Fair Work Commission
[1] Email from the Respondent’s Representative, 12:34pm, 25 October 2023.
[2] Exhibit A1, Applicant’s witness statement, 12-14.
[3] Respondent’s Form F3, question 1.4.
[4] Ibid, question 3.1.
[5] Ibid, question 2.2 and 3.1.
[6] Exhibit A1, Applicant’s witness statement, 28 – 35.
[7] Exhibit A2.
[8] Exhibit A3.
[9] Exhibit A4 and A5.
[10] Sayer v Melsteel Pty Ltd (2011) FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 [2002] AIRC 317, [69].
[11] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[12] Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
[13] Exhibit A1, Applicant’s witness statement, 12 – 16.
[14] In clause 11.3(a) it clarifies that ‘"Significant Effects" under this clause 11 include termination of employment (including redundancy), major changes in the composition, operation or size of the Employer's workforce or in the skills required, the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of Employees to other work areas or locations and the restructuring of jobs.’
[15] Witness evidence of Mr Vonja.
[16] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
[17] Previsic v Australian Quarantine Inspection Services Print Q3730 [1998] AIRC 1371.
[18] Ibid.
[19] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 75.
[20] RMIT v Asher (2010) 194 IR 1, 14-15.
[21] Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
[22] Exhibit A1, Applicant’s witness statement, 14.
[23] Exhibit A1, Applicant’s witness statement at 17 – 23.
[24] Exhibit A4.
[25] Respondent’s outline of submissions in response to the Applicant’s calculations at 2 – 3, 6 – 8.
[26] Applicant’s reply submissions at 2.
[27] Exhibit A1, Applicant’s witness statement 36-37 and Oral Submissions.
[28] PR769576.
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