Mr Aaron Trask v Vaughan Constructions Pty Ltd

[2021] FWC 1218

[2021] FWC 1218

FAIR WORK COMMISSION

DECISION

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

Mr Aaron Trask
v
Vaughan Constructions Pty Ltd
(U2020/10672)

DEPUTY PRESIDENT LAKE BRISBANE, 5 MARCH 2021

Application for unfair dismissal remedy – genuine redundancy jurisdictional objection – whether redundancy genuine – alleged downturn in business due to COVID-19 – labour hire contractor fulfilling duties – redundancy found not to be genuine – dismissal not unfair – application dismissed.

[1] Mr Aaron Trask (the Applicant) has made an application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (the Act) seeking relief from unfair dismissal in relation to his dismissal from Vaughan Constructions Pty Ltd (Vaughan/the Respondent) on 6 August 2020.

[2] The Respondent is a Melbourne based construction company that provides design and construction services. The Applicant worked for its Brisbane office which opened in 2019 as part of efforts to expand the business into Queensland. Until his dismissal, the Applicant worked as a labourer/peggy/safety supervisor, although he performed some functions as a leading hand. The Applicant’s employment was covered by the Building and Construction General On-Site Award 2010 (the Award). At the Hearing, there was some dispute regarding whether the Applicant was covered by an enterprise agreement, which will be addressed below.

[3] The Respondent employed 218 employees at the time the Applicant was dismissed. This included staff who provided labour as well as various supporting and administrative roles. Five staff worked in the Brisbane office.

[4] In its Form F3 – Employer’s response, the Respondent raised the jurisdictional objection that the Applicant’s dismissal was not unfair because it was a case of genuine redundancy. The matter proceeded to conciliation but did not resolve. It was allocated to me and I issued Directions for filing of material and listed the matter for Hearing in relation to the jurisdictional objection.

[5] At the Hearing, the Applicant represented himself and gave evidence on his own behalf. Ms Emma Hartigan provided witness evidence for the Applicant. The Respondent was represented by Mr Leigh Howard of Counsel, instructed by Ms Grace Turner-Mobbs of KCL Law. Mr Josef Picone, National Construction Manager for the Respondent, provided evidence on behalf of the Respondent.

[6] The Applicant sought to be represented. Granting permission to be represented under s 596 requires the satisfaction of two elements.    1 The first pre-requisite: the presence of one of the criteria under s 596(2), does not immediately invoke the right to representation – establishing satisfaction “involves an evaluative judgment akin to the exercise of discretion.”2 Once that first step is satisfied, the second step “involves consideration as to whether in all of the circumstances the discretion should be exercised in favour of the party seeking permission.”3

[7] In this matter there was a degree of complexity, given the jurisdictional objection, and I was satisfied legal representation would aid efficiency. I was satisfied that granting permission to be represented was an option available, and an appropriate exercise of my discretion.

[8] Prior to the Hearing, the Applicant sought an Order that Mr Will Lindsay, Site Manager for the Respondent, be required to attend the Hearing. I granted the Order. Mr Lindsay gave evidence at the Hearing but did not file a witness statement in the proceedings.

PRELIMINARY MATTERS

[9] Section 396 of the Act sets out those matters that must be determined prior to the determination of the merits of a claim for unfair dismissal. Section 396 states that:

396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.

[10] The Applicant’s employment was terminated on 17 July 2020. He made his application on 6 August 2020, within the time limit provided in the Act.

[11] The Applicant commenced employment on 29 July 2019. He was dismissed on 17 July 2020, which is a period of just under 12 months. The Respondent has more than 15 employees and the Applicant has therefore served the minimum employment period provided for by the Act.

[12] As the Respondent is not a small business, the Small Business Fair Dismissal Code does not apply.

[13] It is therefore necessary for me to consider if the Applicant’s dismissal was a genuine redundancy.

GENUINE REDUNDANCY

[14] Whether a dismissal is a genuine redundancy is defined in s.389 of the Act. Section 389 states as follows:

389 Meaning of genuine redundancy

(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer.

[15] I will, as necessary, consider each of these factors.

Changes in the operational requirements

[16] Mr Picone gave evidence that, around March 2020 as a result of the COVID-19 pandemic, the Respondent was severely impacted, with the cancellation and reduction of projects, stalled work, and postponed projects across the eastern seaboard.

[17] The Respondent’s major work in Queensland involved three main projects – the McPhee project, the Kani Coils project, and the Logos project. The Brisbane office was opened in anticipation of the McPhee project which was the Respondent’s first Queensland project. The Kanji Coils project was one that the Respondent had been identified as a preferred tender, and was anticipated to commence in July 2020. This project was delayed by at least 12 months due to the outbreak of COVID-19, and the Respondent, at the time, had not been confirmed as having won the tender. The Logos project was one the Respondent had tendered for but was told on 31 July 2020 that it was unsuccessful.

[18] The McPhee project was involved three stages. The Respondent had won the tender for the Stage 1 project at Berrinba. The Applicant identified in November 2019 that he would be interested in moving to Queensland from Melbourne to perform his role on the project, which the Respondent agreed to.

[19] Mr Picone said that for about two months, the Applicant was the only employee of Vaughan working onsite at McPhee Stage 1. Mr Picone said the Applicant was at times required to directly liaise with the client and the demolition contractor by email, and due to his client and contractor contact, management decided to change the Applicant’s position title in his email signature to ‘Leading Hand’. Mr Picone said that in reality, the Applicant’s position and duties did not change throughout the duration of the project.

[20] Mr Picone said that in late January 2020 when the construction of McPhee Stage 1 commenced, Mr Will Lindsay commenced as Site Manager working onsite and the need for the Applicant to liaise with the client and contractor largely diminished.

[21] Mr Picone said that on or about 28 March 2020, Aaron suffered a suspected stroke. In his absence and during his return to work, the Respondent engaged a supplementary labourer to undertake any task that the Applicant was unable to do. Following this, the on-hire labourer continued to be engaged on an ‘as required’ basis.

[22] In Jones v Department of Energy and Minerals Justice Ryan held that:  4

“…His Honour’s description was cast in terms of a “job” in the sense of a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employer’s organization, to a particular employee. However, it is within the employer’s prerogative to rearrange the organizational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly-created positions. It is inappropriate now to attempt an exhaustive description of the methods by which a reorganization of that kind may be achieved. One illustration of it occurs when the duties of a single, full-time, employee are redistributed to several part-time employees. What is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the re-organization, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position becomes redundant…”

[23] The decision of Solari v RLA Polymers Pty Ltd 5 is also relevant. Solari concerns a redundancy where the employer closed one of its two plants and only one employee, a long-term employee of some 16 years, was made redundant. Deputy President Sams found the respondent had a difficult choice to make on the basis of its operational requirements and its knowledge of the applicant’s skills and experience, and ultimately dismissed the applicant:

“[15] It is perfectly understandable that the applicant would feel hurt, upset and even betrayed by the respondent’s decision to make him - and only him - redundant. It is also understandable that he believes he has the skills to perform the work of the other permanent employees. Most employees after 16 years service would feel they have the experience and knowledge to perform work across the broad spectrum of a company’s operations. This is a natural human reaction. However, when compared to others, this might not always be the reality. Ultimately however, it is the prerogative of Management to manage its business as it sees fit; subject to treating its employees fairly and honestly.

[16] Given the applicant’s 16 years of loyal and conscientious service (which I accept unreservedly), and the respondent’s genuine expressions of regret over the applicant’s redundancy (which I also accept), I have a great deal of sympathy for the applicant. However, sympathy alone does not overrule the legal position or the policy intent of the Act, which denies access to an unfair dismissal remedy where an employee’s termination of employment is a genuine redundancy, as defined. Any forced redundancy is always most regrettable and likely to have a severe impact on an employee and his/her family, particularly someone of the applicant’s age. This is, after all, why all employees are protected, in part, by redundancy payments under their relevant Award or Agreement and why minimum redundancy standards are now a legislated feature of the National Employment Standards (NES). I have no doubt that the respondent acted appropriately in that regard and, in fact, provided a greater period of notice than the Award provides.”

[24] ‘Operational requirements’ is a broad term and involves the past and present performance of the business, the state of the market in which the business operates, steps that may be taken to improve efficiency by installing new processes, equipment or skills, or by arranging labour to be used more productively, and the application of good management to the business.

[25] Here, there is clear evidence of a significant downturn in business. The Respondent had completed its only major project and seemed unlikely to receive further projects. There was no work looming on the horizon at the time. The Respondent was entitled to take steps to improve efficiencies, including making staff at the Brisbane office redundant. While Mr Lindsay was maintained, he was doing so to ‘wrap up’ the final works on the McPhee Stage 1 project and would have been made redundant at the end of the ‘wrap up’ period had circumstances not changed.

[26] It is unfortunate that circumstances conspired such that the Respondent was awarded the Woolworths tender only after making the Applicant redundant. The Woolworths project was, on the evidence, a major one, and one that may well have had room for the Applicant. The redundancy, followed by the award of a major tender, has no doubt contributed to the acrimonious relationship between the Applicant and his former employer. The Applicant said that he had experienced significant hardship in taking the job in Brisbane, having left his family behind for an extended period, only to find that he no longer had a job. While I am sympathetic towards the Applicant and appreciate the unfortunateness of the situation, this does not impact on the whether the redundancy was a genuine one.

[27] As set out in Ulan Coal Mines Limited v Howarth, the Full Bench illustrates that the relevant test is whether an employee’s job was required after the restructure: 6

“[17] It is noted that the reference in the statutory expression is to a person’s “job” no longer being required to be performed. As Ryan J observed in Jones v Department of Energy and Minerals (1995) 60 IR 304 a job involves “a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employees’ organisation, to a particular employee” (at p. 308). His Honour in that case considered a set of circumstances where an employer might rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly-created positions. In these circumstances, it was said that:

“What is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the re-organisation, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position becomes redundant…” (at p.308)

This does not mean that if any aspect of the employee’s duties is still to be performed by somebody, he or she cannot be redundant (see Dibb v Commissioner of Taxation (2004) FCR 388 at 404-405). The examples given in the Explanatory Memorandum illustrate circumstances where tasks and duties of a particular employee continue to be performed by other employees but nevertheless the “job” of that employee no longer exists.

[28] In Kekeris v A. Hartrodt Australia Pty Ltd, Senior Deputy President Hamberger considered whether a dismissal resulting from the restructure of a supervisory team was a case of genuine redundancy. 7 As a result of the restructure, four supervisory team leader positions were replaced by three team leader positions. The Senior Deputy President said:8

“When one looks at the specific duties performed by the applicant prior to her termination they have much in common with those of two of the new positions in the new structure. The test is not however whether the duties survive. Paragraph 1548 of the explanatory memorandum makes clear that it can still be a ‘genuine redundancy’ where the duties of a previous job persist but are redistributed to other positions. The test is whether the job previously performed by the applicant still exists.”

[29] The clear evidence is that the Applicant’s job was not required at the time of the redundancy – that it might have been required at a time after is not relevant.

[30] I am satisfied that the Respondent no longer required the role performed by the Applicant to be performed by anyone because of changes in the operational requirements of the business. The requirements of s.389(1)(a) of the Act are therefore met.

Did the Respondent comply with the consultation obligations?

[31] The Respondent submitted that the Applicant was covered by the Award. The Applicant disputed this, and stated his employment was covered by the Vaughan Constructions Pty. Ltd. / CFMEU Collective Agreement 2019 [[2019] FWCA 1831] (the Agreement).

[32] The Agreement sets out the following regarding redundancy:

“13.2 Redundancy

a) The parties agree that in the spirit of this Agreement, termination of employment will be consistent with the objectives and goals of the Company and the workforce. Termination of employment shall be decided on, but not limited to, issues such as skills and ability, diligence, experience, length of service with the Company and anticipated skills and future labour requirements. Employees will be consulted and advised in respect of what criteria is used to determine redundancies prior to making Employees redundant.

b) When redundancies are deemed necessary there will be appropriate consultation with the workforce and where relevant the Union delegate(s)/employee representative(s) and Company Consultative Committee prior to redundancies taking place. The Company should wherever possible seek voluntary redundancies.

c) The Company will ensure that selection of Employees will be done fairly and in accordance with the established criteria.

d) Where the need for redundancies is disputed, the dispute resolution clause will apply.

[1] Clause 33 sets out the Respondent’s consultation requirements under the Act as follows:

“33. Consultation for purposes of s 205 of the Fair Work Act 2009

33.1 Consultation regarding major workplace change

(a) Where the Company is seriously considering, and prior to the taking of any definite decision on, the introduction of major workplace changes that are likely to have a significant effect on Employees, the Company must notify and consult with the affected employees, or their nominated representative/s (e.g. Union or other representative).

(b) The Company must recognise the representative appointed by an Employee (if any), and consult in good faith in relation to such proposed changes, including by representing Employees during consultation regarding the proposed changes. For the purpose of this consultation, the Company will invite any nominated representative/s (e.g. Union or other representative) to attend the consultations under this clause. Such consultation will occur off site (also noting that this does not confer a general right to enter site to hold discussions with Employees).

(c) For the purposes of the discussion the Company will provide the relevant Employees and/or their nominated representative/s in writing:

(i) All relevant information about the change including the nature of the change proposed;

(ii) Information about the expected effects of the change on the Employees; and

(iii) Any other matters likely to affect the Employees.

(a) However, the Company is not required to disclose confidential or commercially sensitive information.

(b) The Company must give prompt and genuine consideration to matters raised about the major change by the relevant Employees.

(c) “Significant Effects” under this clause 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.

33.2 Consultation about changes to rosters or hours of work

(a) Where the Company proposes to change an Employee's regular roster or ordinary hours of work, The Company must consult with the Employee(s) affected and, if required their representative, about the proposed change.

(b) As soon as practicable after proposing to introduce the change, the Company must:

(i) discuss with the relevant Employees the introduction of the change; and

(ii) for the purposes of the discussion, provide to the relevant Employees and their representative if requested by the Employees:

(iii) all relevant information about the change, including the nature of the change; and

(iv) information about what The Company reasonably believes will be the effects of the change on the Employees; and

(v) information about any other matters that The Company reasonably believes are likely to affect the Employees; and

(vi) 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.

(a) The requirement to consult under this clause does not apply where an Employee has irregular, sporadic or unpredictable working hours.

these provisions are to be read in conjunction with other Agreement or Award provisions concerning the scheduling of work and notice requirements.”

[1] The Agreement at clause 3 sets out the parties and persons bound and covered, and specifically limits coverage to engage in work in New South Wales. There is no coverage of staff outside of New South Wales. Clause 3(d) in fact states that the Agreement applies in New South Wales only. The Respondent explained at the Hearing that an Agreement was before the Commission for consideration which would cover Queensland staff, but this had not been approved.

[2] As the Applicant is now based in Queensland – and given that clause 3(d) of the Agreement provides an express geographical scope limited to New South Wales – I am satisfied that the Applicant’s employment was governed by the Award. Accordingly, I must consider whether the Respondent complied with the obligations to consult under that Award, not the Agreement.

[3] Clause 8 of the Award sets out the requirements for consultation regarding major workplace change as follows:

“8 Consultation about major workplace change

8.1 If an employer makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must:

(a) give notice of the changes to all employees who may be affected by them and their representatives (if any); and

(b) discuss with affected employees and their representatives (if any):

(i) the introduction of the changes; and

(ii) their likely effect on employees; and

(iii) measures to avoid or reduce the adverse effects of the changes on employees; and

(c) commence discussions as soon as practicable after a definite decision has been made.

8.2 For the purposes of the discussion under clause 8.1(b), the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including:

(a) their nature; and

(b) their expected effect on employees; and

(c) any other matters likely to affect employees.

8.3 Clause 8.2 does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer’s interests.

8.4 The employer must promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussion under clause 8.1(b).

8.5 In clause 8:

significant effects, on employees, includes any of the following:

(a) termination of employment; or

(b) major changes in the composition, operation or size of the employer’s workforce or in the skills required; or

(c) loss of, or reduction in, job or promotion opportunities; or

(d) loss of, or reduction in, job tenure; or

(e) alteration of hours of work; or

(f) the need for employees to be retrained or transferred to other work or locations; or

(g) job restructuring.

8.6 Where this award makes provision for alteration of any of the matters defined at clause 8.5, such alteration is taken not to have significant effect.”

[4] In closing submissions, the Respondent argued that the decision to make redundant the Applicant’s position did not constitute major workplace change, as the Respondent employed some 218 staff and was closing only a small, five-person office in Queensland.

[5] Redundancy and termination of employment fall squarely within the definition of major workplace change, as set out in clause 8.5. Clause 8.1 refers to a definite decision to make major changes that would have a significant effect on employees, and at 8.1(a) states clearly that the employer must give written notice to all employees who may be affected. The Respondent was therefore required to consult the Applicant.

[6] Mr Picone gave evidence at the hearing that he had engaged in discussions regarding the redundancy with the Applicant by telephone numerous times in the leadup to the redundancy. Mr Picone said he started discussions with all of the Respondent’s Brisbane-based employees in June and July, and explained that without future projects in the pipeline, this could result in the Brisbane office closing. Mr Picone said he had a telephone conversation with the Applicant in mid-June 2020 where he explained that the business was not in a good position as there were no jobs to move onto following the completion of the McPhee Stage 1 project, and that the Respondent was considering different options for staff including using annual leave, stand downs or potential redundancies. Mr Picone said that he told the Applicant that the Respondent did not want to make any definite decisions at that stage, but that he wanted to be frank and transparent. Mr Picone said he had a further conversation in late June 2020 along the same lines.

[7] Mr Picone said that the Applicant rang him in late June and again in early July and that they discussed the progress of the business. Mr Picone said he reiterated the business’s position as he had previously expressed.

[8] Mr Picone said that he spoke to the Applicant and Mr Lindsay in early July 2020 and expressed that practical completion of McPhee Stage 1 was expected to occur on 17 July 2020. Mr Picone said he explained that the Respondent had not made a definite decision to make the roles redundant, as it wanted to allow as much time as possible with the hope of hearing back on tendered work. This included an expressed interest in the Woolworths project, however, that project was 3 months away and a tender had not been submitted – there was no guarantee that would be work be created from that project, or when that work (if awarded) could start.

[9] Mr Picone’s evidence was that he explained that he doubted the Respondent would be awarded the McPhee Stage 2 project, because the relationship with the client was not great. He said that staff taking annual leave and stand downs would only be suitable as a stop gap measure if there was further work to go on with, but that since their last discussion, they had not found other work. Mr Picone said that it was likely that the Applicant’s position would be redundant in two or so weeks at the end of McPhee Stage 1 and that Mr Lindsay’s position would likely be redundant 3 or so weeks after that, when defects and variations were complete. Mr Picone said the Applicant and Mr Lindsay indicated they understood the circumstances, and asked if there were any redeployment opportunities in Melbourne or Sydney. Mr Picone explained COVID-19 had hit the business hard and there were no open on-site vacancies in Melbourne.

[10] Mr Picone said that on 14 July 2020, he had an update telephone conversation with the Applicant, in which he explained that circumstances had not changed, the Respondent had not gained any further work, and that unfortunately the Respondent would be proceeding with the redundancy of his position on 17 July 2020. Mr Picone said the Applicant asked if he was the only one affected and Mr Picone explained that whole Brisbane office was affected because the Respondent had not won any further contracts.

[11] Mr Picone said the Applicant asked whether the labour hire contractor would be kept on. Mr Picone said that the labour hire contractor would only be engaged ‘as required’ to do specific tasks, being the decommissioning and removal of site accommodation, and that this work would only be done if Mr Lindsay could not safely undertake the work by himself. Mr Picone said the Applicant asked whether he could be kept on to do that work, and Mr Picone explained that if it was 3 weeks’ work, the Respondent could keep the Applicant on, but the labour hire contractor would only be engaged on an as required basis to help Mr Lindsay safely complete some site tidy up during the Respondent’s exit off site.

[12] Mr Picone sent the Applicant a letter by email on 14 July 2020 which confirmed that he would be made redundant effective 17 July 2020. The letter read:

“Dear Aaron,

Re: Termination of your employment by reason of redundancy

The purpose of this letter is to confirm the outcome of a recent review by Vaughan Constructions Pty Ltd of its operational requirements, and what this means for you.

As previously discussed with you, as a result of a reduction of current and future project work your position of Leading Hand is no longer required. Regrettably this means your employment will terminate on 17 July 2020. This decision is not a reflection on your performance.

Your employment will end on the 17 July 2020. Your notice period is two (2) weeks. You will be paid this in lieu of notice from the 20 – 28 July 2020.

You will also be paid your accrued entitlements and any outstanding pay up to and including your last day of employment.

We thank you for your valuable contribution during your employment with us. Please contact me if you wish to obtain a reference in the future.

Yours sincerely,

Josef Picone

National Construction Manager

VAUGHAN CONSTRUCTIONS PTY LTD”

[13] On 17 July 2020, Mr Picone sent a further letter to the Applicant confirming that his employment would end that day, and that his notice period was two weeks:

“Dear Aaron,

Termination of your employment by reason of redundancy

The purpose of this letter is to confirm the outcome of a recent review by Vaughan Constructions Pty Ltd of its operational requirements, and what this means for you.

As previously discussed with you, as a result of current and future project work your position is no longer required. Regrettably this means your employment will terminate. This decision is not a reflection on your performance.

Your employment will end today, Friday 17 July 2020. Based on your length of service, your notice period is two (2) weeks.

Your entitlements are listed below:

○ Payment in lieu of Notice: $3,344.40

○ Unused RDO: $5,016.60

○ Annual Leave: $5,810.00

○ Annual Leave Loading: $1,016.75

Attached is a breakdown of your entitlements.

We thank you for your valuable contribution during your employment with us. Please contact me if you wish to obtain a reference in the future.

Yours sincerely,

Josef Picone

National Construction Manager”

[14] The Respondent submitted in closing that the end of the McPhee Stage 1 project was not a major change as the project was only ever for a set period (that being completion of the project), and that it had consulted with the Applicant for some five weeks verbally and had then provided written notice to the Applicant once the decision had been made to terminate his employment. The Respondent conceded that the Applicant had not received anything in writing prior to the decision to terminate his employment.

[15] It will not be case of genuine redundancy if an employer does not comply with any relevant obligation in a modern award or enterprise agreement to consult about the redundancy. This does not impose an absolute obligation on an employer to consult about the redundancy, but requires the employer to fulfil obligations under an award or agreement if the dismissal is to be considered a genuine redundancy. If an employer was obliged to consult and fails to do so, there cannot be a genuine redundancy.

[16] Consultations should be meaningful and should be engaged in before an irreversible decision to terminate has been made. 9 In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Vodafone Network Pty Ltd, Commissioner Smith found that consultation cannot be perfunctory and must allow an employee a bona fide opportunity to influence the decision maker: 10

“[25] In deciding whether or not to make the orders sought I have considered the importance of consultation. Consultation is not perfunctory advice on what is about to happen. This is common misconception. Consultation is providing the individual, or other relevant persons, with a bona fide opportunity to influence the decision maker. Section 170GA(1)(b) of the Act speaks of measures to avert or minimise terminations or to mitigate the adverse effects of the terminations. Consultation is not joint decision making or even a negative or frustrating barrier to the prerogative of management to make decisions. Consultation allows the decision making process to be informed, particularly as it may effect the employment prospects of individuals. The opportunity to seek to avoid or mitigate the effects of a termination can not be underestimated by those who wield power over those and their families who will the subject of the exercise of that power.”

[17] In the circumstances, I am satisfied that Mr Picone had several meaningful discussions with the Applicant regarding the state of the business, the future of his role, and the spectre of redundancy. The Respondent appeared to be endeavouring to find opportunities to retain the staff in Brisbane, but as Stage 1 of the McPhee project concluded, the Respondent had no meaningful work for the Applicant to engage in and was facing a decidedly uncertain future. The Applicant in his discussions put forward several solutions, including taking of annual and unpaid leave and completing the tasks of the labour hire contractor. I am satisfied Mr Picone considered these and decided that they were not viable.

[18] However, the Respondent was required to give notice in writing. The Award is very clear on this point and in order to rely on s.389 of the Act, it is required that all obligations under a relevant industrial instrument are followed. I am not satisfied that the Respondent complied with all their obligations to consult under the Award – consultation, while undertaken, was not in writing.

Was it 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?

[19] Whether redeployment of an employee is considered reasonable will depend on the circumstances that exist at the time of the dismissal. 11 In determining whether redeployment was reasonable a number of matters may be relevant, including:

•  whether there exists a job or a position or other work to which the employee can be redeployed;

•  the nature of any available position;

•  the qualifications required to perform the job;

•  the employee’s skills, qualifications and experience; and

•  the location of the job in relation to the employee’s residence and the remuneration (pay and entitlements) which is offered.

[20] The question of whether redeployment would have been reasonable must therefore be applied at the time of the dismissal on 17 July 2020.

[21] The Applicant submitted that he had more experience on job sites and also had more working capabilities than some of the other employees, and as such there were many different working positions within the Respondent’s associated businesses which he could have been suited for. The Applicant outlined a list of competencies and positions he considered would have been suitable for redeployment. The Applicant said that he could have been redeployed to Melbourne, worked as a labourer taking down the demountables instead of the labour hire contractor, or could have taken paid or unpaid leave for a period, noting he had six weeks’ accrued unpaid leave which could have seen him through until the start of the Federal Government’s JobKeeper subsidy.

[22] The Respondent submitted that it had considered redeployment options, however the Applicant was a labourer and his tasks had been redistributed to other staff or were no longer required as the McPhee project had ended and the Respondent had no projects in Queensland at that time. As detailed above, the Respondent had engaged the labour hire contractor on an ‘as required’ basis to assist Mr Lindsay when he needed help doing jobs that he could not do himself for reasons of safety (such as taking down the sheds). The Respondent noted that the Applicant’s role included workplace health and safety duties and interaction with the client which were no longer required, and that the labour hire contractor was needed only for particular jobs and on an as required, hourly basis.

[23] As Mr Picone said repeatedly at the Hearing, he did not have a ‘crystal ball’ with which to look to the future. The fact the Federal Government’s JobKeeper subsidy came into effect shortly after the Applicant was dismissed and that the Respondent won a major tender for the Woolworths project are not relevant, as the Commission must look at whether it was reasonable to redeploy the Applicant at the time of the dismissal. In my view, at the time of the Applicant’s dismissal, there was no scope for the Applicant to be redeployed. The Respondent worked hard to identify solutions but ultimately did not redeploy the Applicant. It was entitled to take this course of action.

[24] I find that there was no reasonable opportunity for redeployment of the Applicant, particularly in circumstances where the Applicant’s duties no longer existed.

Conclusion as to genuine redundancy

[25] As conceded by the Respondent, it did not comply with clause 8.2 of the Award as consultation in writing did not occur.

[26] Accordingly, I am satisfied that the dismissal was not a case of genuine redundancy for the purposes of the Act. I now turn to consider the merits of the application.

UNFAIR DISMISSAL

Section 387(a): Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?

[27] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”, and should not be “capricious, fanciful, spiteful or prejudiced”. 12 Further, the Commission will not stand in the shoes of an employer and determine what the Commission would do if it was in the position of the employer.13

[28] The Respondent submitted that the Applicant’s dismissal was not due to misconduct, or poor work performance. The Respondent said it had experienced a significant downturn in work as a result of the COVID-19 pandemic, which resulted in making redundant a number of staff in Brisbane.

[29] Based upon the evidence provided I am satisfied that the reason for the termination was that at the time of the dismissal, the Respondent had no work for the Applicant to do. All current projects had finished and at the time of the dismissal, the Respondent did not know if or when it would win any further tenders. I am satisfied that there was a valid reason for the dismissal.

Section 387(b): Was the Applicant notified of the valid reason?

[30] The Respondent submitted that all employees, including the Applicant, were briefed on the downturn in work and the Applicant was specifically spoken to on several occasions regarding the state of the business in Brisbane. I am satisfied the Applicant was notified of the valid reason.

Section 387(c): Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?

[31] I note that there was no criticism by the Respondent of the Applicant’s capacity or conduct. By all accounts, the Applicant was a good worker, and the dismissal was simply a case of there being no work for the Applicant to perform.

[32] The Respondent submitted that the Applicant was given the opportunity to meet and discuss the matter and did so. The Applicant spoke to Mr Picone on several occasions, and Mr Picone organised several meetings himself.

[33] As the valid reason did not relate to capacity or conduct, this criteria is irrelevant.

Section 387(d): Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?

[34] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present. There is no positive obligation on an employer to offer an employee the opportunity to have a support person. This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them. 14

[35] The Applicant was not given an opportunity to have a support person present at the meeting, but as noted, this is not a relevant consideration as the Applicant did not request a support person, and the Respondent did not refuse him one. Accordingly, I am satisfied there was no unreasonable refusal to allow the Applicant to have a support person present.

Section 387(e): Was the Applicant warned about unsatisfactory performance before the dismissal?

[36] This factor is not relevant as the Applicant was not dismissed for his performance. The Respondent acknowledged the Applicant was a hard worker and raised no performance issues.

Section 387(f) and (g): To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal? To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?

[37] As noted, the Respondent should have been clearer with the Applicant and communicated with him directly and in writing regarding the potential for him to be dismissed. The procedures followed were deficient, but as noted, I consider that further consultation would not have changed the outcome.

[38] The Respondent submitted that at the time of the dismissal it had 218 employees, and that the size of the business did not impact any procedures following during the dismissal process.

[39] The Respondent submitted it does have a dedicated human resources specialist or expert and that the procedures followed had a positive impact on the dismissal and that should be considered ‘best practice’. I disagree. The Respondent failed to properly consult the Applicant according to the Award. The impact of the changes on the Applicant should have been put to him in writing prior to a decision to terminate his employment was made. I understand that in this case, Mr Picone may have felt that communication by telephone was more personal and allowed greater scope for response in a more time-efficient manner, but the Applicant should still have been provided with written notice.

Section 387(h): What other matters are relevant?

[40] In Maswan v Escada Textilvertrieb t/a ESCADA 15, it was found that where an employer failed to consult about a redundancy, but consultation would not have been likely to alter the outcome of a dismissal, the failure to consult, while a serious procedural deficiency, would not result in the dismissal being harsh, unjust, or unreasonable. In Maswan, the applicant was dismissed as a result of merging two managerial positions, and it was decided the applicant was not qualified or appropriate for the merged role, as follows:16

“[39] In my view a decision to dismiss on account of redundancy will only be harsh, unjust or unreasonable if the rationale for the decision is seriously undermined or if there is a serious error in procedure such that renders the termination unfair in the circumstances. Here the decision appears open to the employer to make. The failure to consult is not a trivial matter. But as it is clear that consultation was highly unlikely to have negated the operational reasons for the dismissal or lead to any other substantive change, I do not believe that the failure to consult prior to the date of termination rendered the dismissal unfair. Given the evidence in relation to the operational need to restructure, I am of the view that it is likely that Mr Maswan would have been dismissed in any event, even if timely consultation had occurred.”

[41] In accordance with the principles as set out above in Maswan, I consider that a conclusion that the consultation was deficient would not have resulted in this dismissal being harsh, unjust or unreasonable. In this matter, the defects in the consultation process would not have altered the decision to make the Applicant’s position redundant. As per the conclusion in Masman, even if a further period occurred for consultation, I consider that ultimately the decision would not have been altered.

[42] While Mr Lindsay was able to be retained, this was to assist initially with site close-up for McPhee Stage 1. Events unfolded such that by the time the site close-up was completed (which took longer than anticipated due to inclement weather and other delays), the Respondent won the Woolworths tender and Mr Lindsay was able to continue in his role and his redundancy was retracted. However, the Applicant was not in that position. I consider that the Respondent’s only deficiency was that it did not confirm in writing after the initial conversations with the Applicant and other Brisbane staff that they were at risk of being made redundant and that the Respondent was looking for other work and options. Providing such notice would not have altered the Respondent’s ultimate decision, and would not have extended the Applicant’s employment until other work was found. This is not a circumstance where the Respondent should have consulted for another week or longer.

CONCLUSION

[43] I am satisfied that the dismissal was not harsh, unjust, or unreasonable. It is unfortunate for the Applicant that the decision was made when it was, but at the time, the Respondent was entitled to make the decision it thought best for the company. The simple fact was that at the time the Applicant was dismissed, there was no work for the Applicant to do. That circumstances changed after the Applicant was dismissed is no doubt disappointing for the Applicant, but as Mr Picone said, he did not have a ‘crystal ball’ to peer into the future.

[44] I find that the Applicant was not unfairly dismissed. The application is therefore dismissed. I Order accordingly.

DEPUTY PRESIDENT

Appearances:

Mr A Trask on his own behalf as the Applicant

Mr L Howard of Counsel instructed by Ms G Turner-Mobbs on behalf of the Respondent

Printed by authority of the Commonwealth Government Printer

<PR727547>

 1   Wellparks Holdings Pty Ltd t/as ERGT Australia v Mr Kevin Govender[2021] FWCFB 268.

 2   Asciano Services Pty Ltd v Zak Hadfield [2015] FWCFB 2618, [19(3)].

 3   Wellparks Holdings Pty Ltd t/as ERGT Australia v Mr Kevin Govender[2021] FWCFB 268, [48].

 4   Jones v Department of Energy and Minerals (1995) 60 IR 304, 308.

 5   Solari v RLA Polymers Pty Ltd[2010] FWA 5676.

 6   Ulan Coal Mines Limited v Howarth and others[2010] FWAFB 3488, (2010) 196 IR 32, [17] (Boulton J, Drake SDP, McKenna C, 10 May 2010).

 7   Kekeris v A. Hartrodt Australia Pty Ltd[2010] FWA 674.

 8   Ibid, [27].

 9   Construction, Forestry, Mining and Energy Union v Newcastle Wallsend Coal Company, Print R0234 (AIRCFB, Ross VP, MacBean SDP, Deegan C, 21 December 1998) at paras 78–80, [(1998) 88 IR 202]; cited in Steele v Ennesty Energy Pty Ltd T/A Ennesty Energy[2012] FWA 4917 (Jones C, 21 June 2012), [20].

 10   Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Vodafone Network Pty Ltd (AIRC, Smith C, 14 November 2001), [25].

 11   Ulan Coal Mines Limited v Honeysett [2010] FWAFB.

 12   Selverchandron v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

 13   Miller v University of New South Wales [2003] FCAFC 180 (14 August 2003) at para 64, [(2003) 132 FCR 147].

 14   Explanatory Memorandum to Fair Work Bill 2008 at para. 1542.

 15   Maswan v Escada Textilvertrieb t/a ESCADA [2011] FWA 4239.

 16   Maswan v Escada Textilvertrieb t/a ESCADA [2011] FWA 4239, [39].