[2021] FWC 869

FAIR WORK COMMISSION

DECISION

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

Mr Bhagwant Singh
v
Boral Resources (Vic) Pty Ltd
(U2020/15044)

COMMISSIONER HARPER-GREENWELL

MELBOURNE, 28 APRIL 2021

Application for an unfair dismissal remedy.

[1] On 19 November 2020 Mr Bhagwant Singh (the Applicant) made an application to the Fair Work Commission (Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy in respect of his dismissal by Boral Resource (VIC) Limited T/A Boral.

[2] During the hearing on 16 February 2021 the Respondent confirmed its correct legal name as Boral Resources (Vic) Pty Ltd (Boral, the Respondent). I have utilised the discretion in s.586 of the Act to amend Mr Singh’s application accordingly.

[3] Mr Singh was employed by Boral in the full-time position of Agitator truck driver. Mr Singh was dismissed by Boral, with his employment ending on 30 October 2020. Mr Singh does not wish to be reinstated and is seeking compensation.

[4] Boral raised a jurisdictional objection claiming Mr Singh’s dismissal was a case of genuine redundancy within the meaning of section 389 of the Act. Section 396 of the Act requires me to decide the jurisdictional objection raised by Boral before I consider the merits of the application.

Background and case outline

[5] Boral is a wholly owned subsidiary of Boral Limited, a major supplier of products and materials to the residential and commercial construction, roads and engineering markets in Australia, providing quarry, concrete, asphalt, cement, brick and other constructions products. 1

[6] On 21 July 2015 Mr Singh commenced employment with Boral in the position of Agitator truck driver. 2 His duties included driving the Agitator on a daily basis to deliver premixed concrete to Boral customers, maintaining the cleanliness and appearance of the Company truck that he drove, completing paperwork on a daily basis and also helping out with cleaning duties at the plant when required.3

[7] Boral’s metropolitan concrete business has experienced a gradual decline in truck productivity numbers which was exacerbated by the COVID-19 pandemic. 4 Since March 2020 Boral has been closely scrutinising its business performance as a result of the pandemic and uncertainty arising from its impact on the business. The ongoing review has demonstrated a continued reduction in demand in the Melbourne concrete market.5

[8] Boral has taken a number of steps in Melbourne to meet the changing business demands and uncertain sales forecasts. 6 Those steps included removing 28 contractor trucks from their fleet.7 Despite this, in response to the changing environment, Boral deemed it necessary to make further changes in operations and reduce its driver workforce in the metropolitan Melbourne concrete business to ensure its operations were aligned to the reduced volumes and future demands of its business.8

[9] In October 2020 a decision was made to reduce the Agitator driver positions in Melbourne. 9 Mr Singh was one of six employee’s selected for redundancy. His employment ended on 30 October 2020. Boral submits Mr Singh’s dismissal satisfied the definition of ‘genuine redundancy’ under s.389 of the Act and his application should be dismissed.

[10] Mr Singh submits that after five years of employment with Boral, he was dismissed without prior notice on 30 October 2020. 10 Mr Singh was receiving workers compensation benefits and on a return-to-work plan after being injured at work in July 2020. Mr Singh was working three days a week in a limited working capacity.11 On 30 October 2020 while working his normal shift, Mr Singh submits he was called by Boral and handed a termination letter.12

[11] In response to Boral’s jurisdictional objection, Mr Singh submits that Boral did not consult with him and failed to comply with its obligations to consult under clause 10.1, ‘Consultation and Communication’, of the Agreement. 13 Mr Singh submits that Boral has used a ‘tick the box’ approach to consulting and that there was no formal consultations or discussions held with him.14

[12] Mr Singh also contends that Boral did not take all the reasonable steps to consider redeployment opportunities as required under s.389(2) of the Act. 15

Procedural Background

[13] The matter was the subject of a conciliation conference on 7 December 2020 however the matter was not resolved. The matter was subsequently listed for hearing before me on 16 February 2021.

[14] Mr Singh was represented by Mr Rajiv Dalal, Lawyer. At the hearing Mr Singh gave evidence on his own behalf. Boral was represented by Mr Rod Marshall, Lawyer. Mr Ryan Flack, Regional Operations Manager - Concrete and Mr Radoslav Pjanic, Area Operations Manager - Concrete, gave evidence on behalf of Boral.

Statutory Framework

[15] Mr Singh’s application was made within the 21-day period prescribed by s.394(2) of the Act. Boral is not a small business employer within the meaning of the Act therefore the Small Business Fair Dismissal Code does not apply.

[16] At the time of his dismissal the Boral Metro Logistics (Vic) Drivers’ Enterprise Agreement 2020 16 (the Agreement) applied to Mr Singh’s employment, and he earned less than the high-income threshold. Mr Singh had completed a period of employment with Boral that was at least the minimum employment period required by s.382 of the Act. Mr Singh was a person protected from unfair dismissal.

[17] Boral submit that Mr Singh’s dismissal satisfied the definition of ‘genuine redundancy’ under s.389 of the Act. Therefore, the issue for me to determine in the first instance is whether Mr Singh’s dismissal was a case of genuine redundancy.

Was the dismissal a case of genuine redundancy?

[18] Under s.389(1) of the Act, 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.

[19] Pursuant to s.389(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.

The cases presented

[20] Boral submits that its ongoing review of their concrete operations since March 2020 demonstrated a continued reduction in demand in the Melbourne Market. 17 Consequently, it was required to implement changes to its business to align its cost base to the changing demand and expected future sales. Boral submits it made attempts to alleviate the impact of the COVID-19 pandemic on its workforce however by October 2020 it made the decision to reduce its employee driver workforce in the metropolitan Melbourne concrete business.18

[21] Boral submits that the selection of Agitator Drivers for redundancy was subject to a skills assessment which rated all drivers (including Mr Singh) objectively on areas of technical competencies, performance and safety (Assessment Matrix). The Assessment Matrix was used to determine the skills needed for the future operational requirements of Boral, along with the number of drivers in each area. 19

[22] An initial assessment of drivers using the Assessment Matrix was undertaken in June 2020 (June 2020 Assessment) however a decision to reduce the number of Agitator Driver positions was not made by Boral at that time. Mr Singh rated in the bottom six drivers in the June 2020 Assessment. 20

[23] In October 2020 the criteria for the Assessment Matrix was again reviewed. A review of all drivers against the criteria in the Assessment Matrix was carried out by Plant Managers, Area Operations Managers and reviewed by Mr Ryan Flack, Regional Operations Manager - Concrete, Mr John Matthew, Regional Operations Manager - Concrete, and Human Resources.

[24] Mr Radoslav Pjanic, Area Operations Manager - Concrete, and Mr Daryl Phillips, Plant Manager - Melton, completed the assessment for Mr Singh on or about 26 October 2020. 21 Boral submits the Assessment Matrix showed Mr Singh scored 56 out of 100, a rating that was part of the lowest scoring group, and consequently Mr Singh was confirmed for redundancy selection.22 Boral asserts Mr Singh’s injury and return to work status was not in any way considered by them as part of the selection for redundancy, submitting that each driver was rated solely on the objective criteria set out in the selection matrix.23

[25] Boral submits it satisfied the consultation requirements of the Agreement, undertaking a detailed and considered consultation process aligned with the requirements of clause 10.1 of the Agreement. 24

[26] Boral submits that on or about 20 October 2020 Mr Flack sent an email meeting request to all drivers who were likely to be affected by the proposed changes, including Mr Singh, to confirm that there would be an online/dial in meeting to discuss upcoming business changes. 25

[27] On 21 October 2020 Boral met with employees impacted by the operational review of its concrete business across Metropolitan Melbourne (First Consultation Meeting). Mr Singh was present at this meeting, which took place by way of teleconference via Google Meet due to COVID-19 restrictions in place in Melbourne at the time. 26 Boral submits that the following was discussed by Mr Flack during this meeting:

(a) the gradual decline in truck productivity numbers in metropolitan Melbourne since 2018 and how the COVID-19 pandemic exacerbated concerns with productivity numbers;

(b) steps already taken by Boral in response to the changing environment, including not replacing drivers who have left or moved into other roles, encouraging staff to reduce their leave balances, and over the six weeks prior to the First Consultation Meeting, providing all Melbourne employees 38 hours of pandemic leave to use when their plant was closed for the day or closed earlier due to decreased volumes;

(c) that despite these measures, the Metropolitan Melbourne business remained at a loss and therefore needed to make the difficult decision to reduce the number of company fleet by at least six drivers, meaning at least six positions would be made redundant;

(d) the next steps in the process, including how the Skills Assessment would be used and reviewed by senior management, how face-to-face discussions would be held at plants and individual meetings would be held with affected employees following consultation;

(e) that employees would be given an opportunity to express an interest in voluntary redundancy; and

(f) that it was proposed a final decision would be made by 30 October 2020. 27

[28] Boral submits that the First Consultation Meeting satisfied clause 10.1.5(a) of the Agreement in that they discussed with relevant employees the introduction of the change, the effect the change was likely to have on employees and the measures Boral was taking to avert or mitigate the adverse effects of the change on employees (including inviting employees to express an interest in voluntary redundancy). 28

[29] Boral submits they also answered questions from the Transport Workers’ Union (TWU) and affected drivers during the First Consultation Meeting, and gave consideration to matters raised about the changes. 29

[30] Boral submits that on 21 October 2020 after the First Consultation Meeting it sent impacted employees, including Mr Singh, a letter detailing all relevant information regarding the change and consultation process (21 October letter). 30 The 21 October 2020 letter addressed the following:

(a) the decreasing volumes across the Melbourne concrete market;

(b) the need to reduce the Agitator Driver workforce in its metropolitan concrete business, specifically that six Agitator Driver positions would no longer be required;

(c) that employees could speak to members of the Respondent’s leadership team about the changes and potential effect on them, including the ability to express an interest in voluntary redundancy; and

(d) how the Respondent would use an objective skills assessment to make decisions around which positions would be made redundant. 31

[31] Boral submits that the 21 October Letter satisfied clause 10.1.5(b) of the Agreement in that it provided, in writing, to relevant employees (including Mr Singh) all relevant information about the change including the nature of the change proposed, information about expected effects on employees and any other matters likely to effect employees (including potential voluntary redundancies and the Assessment Matrix). 32

[32] Boral submits that during a telephone call between Mr Pjanic and Mr Singh on 22 October 2020, Mr Pjanic asked Mr Singh whether he understood what was discussed during the First Meeting and if he had any questions, and Mr Singh acknowledged he understood and said he did not have any questions. 33

[33] Boral submits that on 26 October 2020, Mr Singh called Mr Pjanic and asked how Boral would determine which positions would be made redundant, and Mr Pjanic explained the use of the Assessment Matrix to Mr Singh. 34

[34] During the consultation process, a driver (who was not in the low scoring group based
on the completed Selection Matrix) expressed an interest in volunteering for redundancy. Boral submits it considered and discussed this expression of interest internally and with the TWU. After consideration, a decision was made with the support of the TWU that seven drivers in total would be made redundant. Boral submits this voluntary redundancy did not change its position that at least six other driver positions would no longer be required in order to align its operations with future demand, and did not change the fact the Mr Singh’s role was no longer required. 35

[35] Boral submits that they were seeking to reduce the overall headcount of its concrete workforce in Melbourne due to the downturn in the market, and had a general recruitment freeze across Boral nationally. Accordingly, it submits that there was no opportunity to redeploy Mr Singh to another role locally and no suitable vacant position existed within their Melbourne Business. 36

[36] On 30 October 2020 Mr Flack and Mr Pjanic held a meeting with Mr Singh during which they informed him that there were no suitable alternative positions in the business for him to be redeployed to locally due to the downturn in business in Melbourne and the recruitment pause nationally. 37 Mr Flack advised Mr Singh there were suitable alternative driver positions available in other States and handed him a list of all available jobs with Boral.38 Boral submits that Mr Flack went through the list with Mr Singh to identify suitable redeployment opportunities and advised him to consider these alternative positions.39 Mr Flack also provided Mr Singh with a letter confirming the outcome of Boral’s review and restructure which confirmed the termination of his employment due to redundancy. Mr Singh was informed his termination would not be processed until he told Boral whether he would like to accept any of these alternative roles. Boral submits that Mr Singh was informed during this meeting that if he did not wish to consider any of these other opportunities his employment would be terminated due to redundancy. Boral submits that Mr Singh advised Mr Flack and Mr Pjanic that he would need to speak to his family about moving if he were to consider one of the interstate positions.40

[37] On 2 November 2020 Mr Singh informed Mr Pjanic by telephone that he had discussed redeployment interstate with his family and that he did not want to relocate interstate and therefore would not be able to accept any suitable role interstate. 41

[38] Boral submits Mr Singh’s dismissal satisfied the definition of ‘genuine redundancy’ under s.389 of the Act and his Application should be dismissed.

[39] Mr Singh submits that Boral failed to consult with him and did not comply with its obligations to consult under clause 10.1 of the Agreement. 42 He contends that Boral has used a ‘tick the box’ approach to consulting and that there was no formal consultations or discussions held with him.43 Mr Singh states that he was on a recover to work plan and working three days in a week with limited working capacity. He says Boral has kept the redundancy process unclear.44

[40] In regard to the First Consultation Meeting, on 21 October 2020, Mr Singh submits he joined the meeting following Boral’s instructions, that the quality of the call was poor and he missed some part of the meeting but he clearly understands that it was not a person to person consultation. 45 Mr Singh states the meeting script Mr Flack says he used does not state that Mr Singh’s position is subject to redundancy Mr Singh also contends the script suggests that a meeting will be held with the individuals whose employment will be affected.46

[41] Mr Singh states that the 21 October letter Boral says was sent to affected drivers only was sent by email to all drivers. 47 Mr Singh submits the 21 October letter is generic, does not state that his position is subject to redundancy, is not enough to consult and does not provide any meaningful information relevant to him.48

[42] Mr Singh states that the meeting script provided by Mr Flack also advised that Boral will commence face to face discussion with affected employees about the redundancy process. 49 Mr Singh says Boral visited his workplace (Melton plant) on 22 October 2020. He states Boral was aware he was on medical leave during this period seeking treatment for his injuries, and that he had been receiving workers compensation benefits since July.50

[43] Mr Singh states on 22 October 2020 he received a phone call from Mr Pjanic who had a general conversation about his injuries and upcoming medical appointments. Mr Singh submits that at no stage did Mr Pjanic advise him that his position will be redundant. 51

[44] Mr Singh submits that on 26 October 2020 he called Mr Pjanic and enquired if his position is subject to redundancy. He says he also asked about the criteria of Skill Matrix but no information was provided by Mr Pjanic. 52 On 30 October 2020 while working his normal shift he was called by Boral and a termination letter was handed to him.53

[45] Mr Singh also contends that Boral had a legal obligation to explore his potential redeployment and did not take all the reasonable steps to consider redeployment opportunities as required under s.389(2) of the Act. 54

[46] Mr Singh submits that while Boral advised only six positions will be redundant, in total seven positions were made redundant. Mr Singh submits that at no stage did Boral advise Mr Singh of this, which he contends created a new vacant position, which Boral never offered to him. 55

[47] Mr Singh submits that on 30 October 2020 after his termination he was provided with a hard copy of few available jobs with Boral and also advised that his profile might meet the criteria for the vacant position in Queensland. Mr Singh states this was not an offer of employment. Mr Singh did not take up any of the redeployment options, submitting they were not suitable, the majority of the available roles being unsuitable because of their location. 56

[48] Mr Singh also submits that he would have to compete with other employees for the available jobs. He says he was advised to explore Boral’s website for any available position’s and need to follow the procedure for selection. 57

Evidence of Mr Flack

[49] Mr Flack is the Regional Operations Manager – Concrete for Boral and has been in that position since 1 July 2017. 58

[50] Mr Flack’s evidence is that in October 2020 a decision was made to reduce the Agitator Driver positions in Melbourne, due to the continued reduction in business demand and the sales forecast which predicted that the situation was not going to improve in the short to medium term. 59 On 16 October 2020 a meeting was held with Mr Pavlou of the Transport Workers’ Union of Australia (TWU), Mr Andrew Patterson, General Manager of Human Resources, John Matthew, Regional Operations Manager of Concrete and Mr Flack. Mr Flack says during this meeting Boral discussed with Mr Pavlou the review of driver operations in Melbourne, the proposed changes to the Agitator Driver workforce, the reasons for these changes, and what steps Boral had taken to date to reduce cost in response to the fall in demand.60 Mr Flack says the consultation process with affected workers was also discussed and Mr Pavlou suggested Boral meet with employee bargaining representatives to discuss the changes initially.61

[51] It is Mr Flack’s evidence that on 20 October 2020 a further meeting was held with employee bargaining representatives, including Mr Pavlou (TWU), in relation to the changes expected to affect the Agitator Driver workforce in Melbourne and the consultation process that would follow. During this meeting Mr Flack says the bargaining representatives were told a Skills Assessment Matrix would be used to determine which roles would be made redundant, that Boral went through the criteria in the matrix and everyone present at the meeting agreed that the criteria for the Skills Assessment Matrix should be used. 62 Mr Flack says that voluntary redundancies were also discussed.63

Consultation process

[52] Mr Flack says that on 20 October 2020 he sent an email meeting request to all employees likely to be affected by the proposed changes, including Mr Singh, to confirm that there would be an online/dial in meeting to discuss upcoming business changes. 64

[53] Mr Flack’s evidence is that on 21 October 2020 he held a meeting via Google Meet with affected employees to commence consultation in relation to the decline in concrete volumes and changes to the business (First Consultation Meeting). 65 Mr Pavlou, Mr Patterson and Elissa Norris, HR Business Partner – Southern region were also on the call.66 Mr Flack says 21 of the invited 23 metropolitan drivers including Mr Singh were on the call, two drivers at customer sites missed the call.67 Mr Flack says he took attendance at the start and drivers spoke to confirm their attendance. Mr Flack says he knows Mr Singh was on the call as Mr Singh told him, towards the end of it, that he was on the call but had difficulty taking himself off mute when Mr Flack took roll call.68 Mr Flack says he told Mr Singh he would call him at the end of meeting if he missed anything, to which Mr Singh replied “No, that’s ok. I was on from the start and heard everything.”69

[54] It is Mr Flack’s evidence that he used a script 70 prepared for the First Consultation Meeting, and discussed the matters previously outlined at [27] above. Mr Flack says during the First Consultation Meeting Mr Pavlou asked whether voluntary redundancies would be considered as part of the consultation process, and he responded that whilst there was no requirement to conduct a formal voluntary redundancy process, all options would be considered in their discussions with affected employees.71 Mr Flack says he was asked by a driver how Boral would determine who would be made redundant and he explained that a Skills Matrix would be used to assess all drivers, read through the criteria on the Skills Matrix and explained the Skills Matrix had been reviewed by the driver bargaining representatives, including the TWU, and they were comfortable with the criteria.72 Mr Flack says Mr Pavlou asked if a copy of the Skills Matrix criteria would be available and he informed the drivers that they could request hard copies of the criteria for the Skills Matrix from management.73 Mr Flack’s evidence is that following this meeting, approximately four drivers requested to be provided with a copy of the Skills Matrix, however at no time did Mr Singh request a copy.74

[55] Mr Flack’s evidence is that on 21 October 2021 he sent a letter (21 October letter) to all impacted employees, including Mr Singh setting out all relevant information regarding the consultation process. 75 Mr Flack says he sent the letter to Mr Singh’s email address at 9:29am on 21 October 2020.76

[56] Mr Flack’s evidence is that on 22 October 2020 at 10:55am he attended Melton Concrete Plant, where Mr Singh was based, to speak with the drivers about the changes in operations, the likely impacts, and answer any questions the drivers may have had regarding the consultation process. Mr Flack says Mr Singh was not present at work that day due to a medical appointment. It is Mr Flack’s evidence that he attended a total of five sites (including Melton) on that day. 77 He said he didn’t feel the need to call Mr Singh after his site visit as Mr Singh had spoken to Mr Pjanic, and confirmed he provided no face to face consultation with Mr Singh after the meeting on 21 October 2020.78 Mr Flack says after the 21 October meeting and before 30 October 2020 he spoke to the other drivers that were made redundant other than Mr Singh, who he spoke to on 30 October 2020. 79

[57] It is Mr Flack’s evidence that Mr Pjanic told him he spoke with Mr Singh on 22 October 2020 in relation to the First Consultation Meeting. He says Mr Pjanic told him Mr Singh called to discuss his medical appointments, Mr Pjanic asked if he had any questions in relation to the teleconference held the previous day regarding upcoming business changes and Mr Singh responded saying he had no questions and that he fully understood the content. 80

[58] Mr Flack gave evidence that the selection of Agitator Drivers for redundancy was subject to a Skills Assessment which rated all 23 drivers, including Mr Singh, objectively on areas of technical competencies, performance and safety. This Assessment Matrix was used to determine the skills needed to be maintained for the future operational requirements of Boral. 81 The Assessment Matrix for the 23 drivers was carried out by Plant Managers and Area Operations Managers and reviewed by Mr Flack and Mr Matthew (Human Resources).82 Mr Flack confirmed that drivers were not given an opportunity to object to or question their score.83 Mr Flack says the Assessment Matrix also considered the number of drivers in each area at the time of the review and the number of drivers required in the future to align with demand. Mr Singh was one of three drivers employed in the Melton area84

[59] Mr Flack says the ratings for Mr Singh were completed by Mr Pjanic and Mr Daryl Phillips, Plant Manager – Melton, with the assessment completed on or about 26 October 2020. Mr Flack says Mr Singh was confirmed for selection for redundancy after the Assessment Matrix showed he scored 56 out of 100, part of the lowest scoring group. 85

Redeployment

[60] Mr Flack’s evidence is that he had discussions with the local HR team regarding the availability of other suitable positions, and printed off the ‘Jobs at Boral’ page from the Boral intranet and went through the list to identify any suitable redeployment opportunities for those being made redundant. Mr Flack says that as Boral was required to reduce driver headcount as a result of the restructure, there were no reasonable redeployment opportunities for Mr Singh locally however there were some available roles interstate. 86

[61] Mr Flack says that on 30 October 2020 he and Mr Pjanic had a meeting with Mr Singh during which he advised Mr Singh that his position Agitator Driver was one of the positions that would be made redundant due to his scores on the Assessment Matrix criteria. He says he informed Mr Singh that attempts had been made to find suitable alternative positions for him in the business but none could be found locally because of the downturn in business in Melbourne and the recruitment pause in place nationally. Mr Flack says he handed Mr Singh a letter regarding the redundancy. 87

[62] Mr Flack’s evidence is that during this meeting he told Mr Singh there were suitable alternative positions available in other States and handed Mr Singh a copy of the ‘Jobs at Boral’ page. He says he asked Mr Singh to consider the alternative positions and let him or Mr Pjanic know if they were of interest to him, and that his termination would not be processed until Mr Singh told them whether he would like to accept any of the alternative roles. Mr Flack says he told Mr Singh if he did not wish to pursue any of the other opportunities his employment would be terminated due to redundancy and gave him the weekend to consider the positions. 88

[63] Mr Flack says that during the meeting he and Mr Pjanic discussed some of the other interstate driver roles and Mr Singh said that he was quite interested in the interstate roles and would talk to his family about moving. 89 Mr Flack says Mr Singh asked how the redeployment process worked and also inquired about a Plant Supervisor role in Swan Hill, the only other role available in the concrete business in Victoria at the time. Mr Flack says he explained the role and its responsibilities and asked about Mr Singh’s experience in batching concrete, people management and sales. After Mr Singh told him he had no experience Mr Flack says he discussed with Mr Singh that it was a very different role and based on what he had told him Mr Singh would not have the skills or experience for that role and it would be difficult for Boral to say it would be a suitable redeployment opportunity. Mr Flack say he told Mr Singh that if he was interested in another Agitator Driver role in the country, he would be guaranteed that position.90 Mr Flack says Mr Singh also asked how the redundancy affects his WorkCover payments due to his work injury and he told him he would receive the redundancy payment should he choose not to pursue a redeployment opportunity.91

[64] Mr Flack’s evidence is that Mr Pjanic told him Mr Singh called him on 2 November 2020 and told Mr Pjanic he had decided with his family that he did not want to relocate interstate and that he would take the redundancy payment. 92

Job no longer required to be performed because of changes in operational requirements

[65] Mr Flack’s evidence is that as a result of the restructure of the concrete business, Mr Singh’s position of Agitator Driver, along with six other Driver positions, were surplus to the needs of the business and no longer required to be performed by anyone. 93 Mr Flack says seven drivers in total were made redundant, with the seventh person taking a voluntary redundancy. Mr Flack says that person was not in the bottom group of the Skills Matrix but showed an interest in taking a voluntary redundancy. Boral discussed it and consulted with the TWU as to whether they would be comfortable with Boral offering another driver redundancy on a voluntary basis, and Mr Flack says the TWU agreed.94

Evidence of Mr Pjanic

[66] Mr Pjanic is the Area Operations Manager – Concrete for Boral and has been in that position since 1 October 2018.

Consultation

[67] Mr Pjanic’s evidence is that at the beginning of October 2020 he was advised by Mr Flack that due to the negative effect of COVID-19 on Boral truck productivity levels and concrete volumes that the Boral Concrete Agitator Driver group would be undergoing restructuring. 95 Mr Pjanic says Mr Flack sent an email informing impacted employees of a teleconference on 21 October 2020 to discuss changes in the business and Mr Pjanic followed up with his drivers, including Mr Singh, via a telephone call to make sure they had received the email and were fully informed of the details of the upcoming teleconference.96

[68] Mr Pjanic’s evidence is that he was present at the meeting on 21 October 2020 (First Consultation Meeting) with all drivers from Metropolitan Melbourne. He says all drivers from the cluster of plants he looks after were present on the teleconference, including Mr Singh who acknowledged he was present when asked by Mr Flack during the teleconference. 97 Mr Pjanic does not recall the specific details of questions that were asked during the meeting, but says questions were asked by some drivers and Mr Pavlou.98

[69] Mr Pjanic states that on 22 October 2020 at 3:57pm he had a telephone discussion with Mr Singh in which he discussed Mr Singh’s upcoming medical appointments for his wrist injury. He also asked Mr Singh if he understood what was said on the teleconference at 1:00pm on 21 October 2020 and if he had any questions. 99 Mr Pjanic states that Mr Singh said words to the effect of, “Yes, I understood what was said and I don’t have any questions ”.100

[70] It is Mr Pjanic’s evidence that on 26 October 2020 at 1:30pm Mr Singh called him and asked “how it will be decided as to which drivers will be made redundant”. Mr Pjanic says he told Mr Singh:

“A skills matrix will be used to assess each driver against a set of key performance criteria. The outcome of these assessments will determine which driver positions would be made redundant.” 101

[71] It is Mr Pjanic’s evidence that Mr Singh did not ask him for a copy of the criteria or ask about the details of the criteria. 102

[72] Mr Pjanic’s evidence is that an Assessment Matrix, including a Skills Assessment, was used to determine which Driver positions would be made redundant. 103 Drivers were scored on each criteria on a scale of one to five, with five being the highest achievable score. Scores for each criteria were then added up to give a ‘total’ score for each driver. Mr Pjanic says he was first asked to complete the Skills Matrix for his group of Agitator Drivers by Mr Flack in June 2020, which he did.104

[73] Mr Pjanic’s evidence is that in October 2020, due to the decrease in company truck productivity and the subsequent company Agitator Driver restructuring, he was asked by Mr Flack to revisit the Skills Matrix and complete a reassessment for each of the Boral drivers he looked after. 105 On 26 October 2020 Mr Pjanic completed the Skills Matrix with Mr Phillips, Mr Singh’s Plant Manager, who gave the final score.106

Redeployment

[74] Mr Pjanic’s evidence is that on 30 October 2020 he and Mr Flack met with Mr Singh in person. Mr Pjanic says during this meeting Mr Flack told Mr Singh his position was no longer required to be performed by anyone and his role would be redundant. 107 He states that Mr Flack explained to Mr Singh that the Skills Matrix and Assessment had been completed, communicated the termination of Mr Singh’s employment and gave Mr Singh the termination letter.108 Mr Pjanic says Mr Flack told Mr Singh that if he was to decide to take up another position within Boral, the letter would not take effect.109 Mr Pjanic says Mr Flack handed to Mr Singh the list of Boral jobs listed nationally and he and Mr Flack discussed with Mr Singh job opportunities within Boral that were both local and interstate.110 Mr Pjanic states that Mr Singh showed interest in potentially applying for an Agitator Driver role in Queensland but explained he would need time to discuss this potential move with his family before making a decision.111

[75] Mr Pjanic’s evidence is that on 2 November 2020 at 11:47am he returned Mr Singh’s phone call from the previous day. Mr Pjanic states that the following conversation took place:

“Bhagwant: “Rad, I have discussed the job that is available in QLD with my family and have decided not to pursue it, it would be too difficult for me and my family to move interstate.”

Me: “OK Bhagwant, and what about any of the other positions that are available?”

Bhagwant: “No I do not think the other positions are suitable for me.”

Me: “OK mate I will let Ryan know that you have decided not to pursue any of the other positions that are available.”” 112

[76] It is Mr Pjanic’s evidence that on 10 November 2020 Mr Singh called and asked if he could send him a copy of the Agreement as he had lost his, and he emailed him a copy that same day. 113

Evidence of Mr Singh

[77] Mr Singh commenced employment with Boral as a full-time Agitator truck driver on 21 July 2015. 114

[78] Mr Singh’s evidence is that on 3 July 2020 he suffered a workplace injury which resulted in surgery for his right wrist. 115 On 5 July 2020 Mr Singh says he received a call from Boral to start work from 6 July 2020 with some light duties. On 6 July he successfully applied for Workcover and on 7 July 2020 he provided Boral with his first certificate of capacity.116

[79] Mr Singh says he provided Boral with a certificate of capacity until August-September 2020. 117 On or about 3 September 2020, Mr Singh says Boral provided him with a recover at work plan (the Plan) and he started working for limited hours.118 In October 2020, prior to his termination, pursuant to the Plan Mr Singh worked three days a week for six hours a day.119

[80] On 20 October 2020 Mr Singh says he received an email from Boral, addressed to all the drivers, requesting they attend an upcoming Google meet being held on 21 October 2020 to discuss upcoming business changes. 120

[81] It is Mr Singh’s evidence that on 21 October 2020 he made a call to Boral to attend the Google meet as per instructions, that the quality of the call was poor and he missed some of the conversation held during the meeting. He said he understood that Mr Flack talked about some percentage of decrease in Boral’s annual profit and there was a discussion about the redundancy of six Agitator driver positions. 121 Mr Singh says he was never advised that the meeting was about making a decision to make his employment redundant and no criteria for any Skill Assessment were discussed during the meeting.122

[82] Mr Singh said he received an email from Boral the same day containing a generic letter advising that six Agitator Driver positions are no longer required. 123 Mr Singh states this letter did not advise that his position is subject to being redundant and he believes it was sent to everyone not only to the affected drivers. He says the letter does not advise that he is one of the six Agitator drivers whose position will be redundant.124

[83] Mr Singh’s evidence is that on 22 October 2020 he became aware from colleagues that Mr Flack had visited the Melton plant. Mr Singh states he had a Doctor’s appointment that day and was on medical leave. He says Mr Flack made no attempt to contact him by telephone or email. 125 Mr Singh says he received a call from Mr Pjanic that same day and had a general conversation about his injury and upcoming medical appointments however during their conversation he was never advised by Mr Pjanic that his position was selected for redundancy.126 Mr Singh conceded that he could not recall the entire conversation, and that Mr Pjanic also raised the consultation meeting the previous day and that he understood the basics of things, that they were going to make six driver positions redundant.127

[84] Mr Singh’s evidence is that on 26 October 2020 he called Mr Pjanic to inquire about the redundant positions. He says he asked Mr Pjanic to advise him clearly if his position had been selected for redundancy, but Mr Pjanic never advised him that he was one of the six drivers whose position had been made redundant. He states he also asked about the criteria for the Skill Matrix but no information was provided about the criteria. 128 He confirmed that Mr Pjanic told him a Skills Matrix would be used to assess each driver against a set of key performance criteria, and the outcome of those assessments will determine which driver positions would be made redundant.129 Mr Singh also confirmed he did not request a copy of the criteria from Mr Pjanic.130 Mr Singh’s evidence is that no Boral representative had any face-to-face interaction with him at any stage after the Google meet on 21 October 2020 and his termination.131

[85] Mr Singh states he was shocked when, on 30 October 2020, Mr Flack provided him with a termination letter and advised him that his position was no longer required. 132 He says this was the first time he was informed that his position was going to be redundant. Mr Singh says he was working at the plant doing light duties and was called into the lunch room and told Boral didn’t need his service any longer and that he needed to go home.133 He said he asked Mr Flack to advise if any other positions were available in the organisation or with their partners in the metro area of Victoria, and Mr Flack provided him with a hard copy of the available position. Mr Flack also advised him to explore Boral’s website and to apply online if he found any vacant positions. Mr Singh said he could only see one vacant Agitator Driver position on Boral’s website, which was only available in Queensland, and he understood from his discussion with Mr Flack that if any other redundant drivers applied for the same vacant role there would be a selection.134

[86] During cross-examination Mr Singh provided more detail in regard to the discussion he had with Mr Flack on 30 October 2020. He says Mr Flack told him six positions were going and his was one of them and gave Mr Singh a list of Boral jobs that included a truck driver position in Queensland and a few Victorian jobs that Mr Flack told him were management level. He states Mr Flack told him he doesn’t have any management experience, which Mr Singh agreed with, and Mr Flack then said “they’re sorry, they can’t help me with these jobs”. 135 He agreed that Mr Flack had informed him that attempts had been made to find suitable alternative positions for him in the business, but that no such positions could be found in the Boral Concrete or Logistics business locally because of the downturn in business in Melbourne and the recruitment pause in place by Boral nationally.136 He agreed that he told Mr Flack he would consult with his family about potentially moving interstate and that he also expressed interest in a plant supervisor role at Swan Hill and had a discussion with Mr Flack about his lack of experience for the role.137

[87] Mr Singh’s evidence is that on or about 2 November 2020 he received a call from Mr Pjanic, returning his missed call, who asked him if he wanted to relocate to Queensland. In his witness statement Mr Singh states he never received any prior notice of this offer and was unable to consider the offer to relocate to Queensland, however in cross-examination he agreed this was incorrect. 138 Mr Singh confirmed he told Mr Pjanic he had discussed moving interstate with his family and that he did not want to relocate interstate.139

Consideration

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 (s.389(1)(a)

[88] Boral contends it no longer required Mr Singh’s job to be performed by anyone because of changes in the operational requirements of its enterprise. Boral submits this is self-evident and very clear from the discussion script Mr Flack went through in the First Consultation Meeting with affected drivers on 21 October 2020, and also the 21 October 2020 letter issued to all affected drivers, including Mr Singh following that meeting. 140

[89] Mr Flack gave evidence that the decision to reduce the Agitator Driver positions in Melbourne was made due to the continued reduction in business demand and the sales forecast which predicted that the situation was not going to improve in the short to medium term. Mr Singh has not provided any evidence to the contrary.

[90] Mr Singh took issue with the fact that Boral was still engaging its contractor fleet whilst his and other positions were made redundant. Boral engages drivers through commercial and service contracts in addition to direct employment contracts. Boral has engaged a temporary contractor fleet of 28 trucks which is used to flex up and down dependant on work availability. I accept the evidence of Mr Flack that Boral in the first instance reduced its temporary contractor fleet by no longer providing work to the operators of the temporary fleet of trucks.

[91] Mr Flack’s evidence is that drivers engaged through the commercial contracts are not employees of Boral. The commercial contractors engaged by Boral are on contracts that contain five year terms. Boral retained its commercial contracts because there are additional financial implications to the business if it proceeded to terminate those contracts. Commercially it is not viable for Boral to terminate its commercial contracts in order to retain Mr Singh’s role.

[92] Mr Flack’s evidence is that based on capital restrictions within Boral they had come to the decision that in addition to the reduced contractor fleet they needed to reduce the number of employees in their driver operations in Melbourne. The fact that Boral has retained its commercial contracts does not mean that Mr Singh’s position was not redundant. The contractors are not engaged as employees to perform full-time duties, they perform packages of work upon availability of that work and in accordance with their contract terms.

[93] I find that Boral no longer required Mr Singh’s role to be performed by anyone because of the changes to its operational requirements. I accept the evidence of Mr Flack being that Boral has suffered a reduction in forecasted work which has been further impacted by COVID-19.

Has Boral complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy (s.389(1)(b))

[94] Boral submits that it has satisfied the consultation requirements of clause 10.1 of the Agreement. Clause 10.1 provides as follows:

“10.1 Consultation and Communication

10.1.1 This clause applies if:

(a) The Company has made a definite decision to introduce a major change to production, program, organisation, structure, or technology in relation to its enterprise; and

(b) the change is likely to have a significant effect on employees of the enterprise.

10.1.2 The Company must notify the relevant employees of the decision to introduce the major change.

10.1.3 The relevant employees may appoint a representative for the purposes of the procedures in this clause.

10.1.4 If:

(a) a relevant employee appoints, or relevant employees appoint, a representative for the purposes of consultation; and

(b) the employee or employees advise the Company of the identity of the representative;

The Company will recognise the representative.

10.1.5 As soon as practicable after making its decision, the Company must:

(a) discuss with the relevant employees:

(i) the introduction of the change; and

(ii) the effect the change is likely to have on the employees; and

(iii) measures the Company is taking to avert or mitigate the adverse effect of the change on the employees; and

(b) for the purposes of the discussion - provide, in writing, to the relevant employees:

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

(ii) information about the expected effects of the change on the employees; and

(iii) any other matters likely to affect the employees.

10.1.6 However, the Company is not required to disclose confidential or commercially sensitive information to the relevant employees.

10.1.7 The Company must give prompt and genuine consideration to matters raised about the major change by the relevant employees.

10.1.8 If a term in this Agreement provides for a major change to production, program, organisation, structure or technology in relation to the Company's enterprise, the requirements set out in clause 10.1.2, 10.1.3 and 10.1.5 are taken not to apply.

10.1.9 In this clause, a major change is likely to have a significant effect on employees if it results in:

(a) the termination of the employment of employees; or

(b) major change to the composition, operation or size of the Company's workforce or to the skills required of employees; or

(d) the alteration of hours of work; or

(e) the need to retrain employees; or

(f) the need to relocate employees to another workplace; or

(g) the restructuring of jobs.

10.1.10 In this clause, relevant employees means the employees who may be affected by the major change.

10.1.11 Changes to regular rosters or ordinary hours of work

(a) As soon as practicable after proposing to introduce the change, the employer must:

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

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

(iii) information about what the employer reasonably believes will be the effects of the change on the employees; and

(iv) information about any other matters that the employer reasonably believes are likely to affect the employees; and

(v) invite the relevant employees to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities).

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

(c) The Company must give prompt, genuine, and proper consideration to matters raised about the change by the relevant employees.

(d) No implementation will occur until proper and genuine consultation has occurred to the satisfaction of the parties, and agreement has been reached. In circumstances where agreement cannot be reached the dispute resolution procedure will be invoked as per clause 10.1.

[95] Boral contends that it has complied with its obligation under clause 10.1 of the Agreement to consult with Mr Singh. It submits that the obligation to consult arises as soon as a definite decision has been made, and the obligation is to discuss the change with the relevant employees, defined in clause 10.1.10 of the Agreement, which are the employees who may be affected by the major change. 141 The definite decision made by Boral was to reduce the number of Agitator Drivers in its metropolitan concrete business.

[96] Mr Singh has misconstrued Boral’s consultation obligations under the Agreement in that it appears Mr Singh has implied in his evidence that Boral had not met it requirements under clause 10.1 because it consulted with all employed drivers as opposed to just consulting with Mr Singh on an individual basis or just the six drivers who were ultimately selected for redundancy. If I was to accept Mr Singh’s submission it would result in a narrow and incorrect construction of clause 10.1.2 of the Agreement. Clause 10.1.2 of the Agreement requires Boral to notify ‘relevant employees’ of a decision to introduce a major change. A ‘major change’ is described in clause 10.1.1(a) as a change to production, program, organisation, structure, or technology in relation to its enterprise; and the change is likely to have a significant effect on employees of the enterprise. Once Boral had decided to make a definite change to its structure it was required to notify the “relevant employees of the decision to introduce the major change”. Relevant employees is defined in clause 10.1.10 to mean “the employees who may be affected by the major change”.

[97] Those employees who were likely to be affected by the major change was not limited to Mr Singh and the six employees who were ultimately made redundant. If Boral had only consulted with Mr Singh or the six drivers who were selected for redundancy at this stage of the process, it would most likely have a serious question to answer in terms of whether it had complied with its consultation obligations under the Agreement.

[98] The evidence before me supports a finding that Boral consulted with Mr Singh and all employees likely to be affected by the decision to reduce the size of the workforce due to the impact of the operational requirements resulting from the downturn in forecasted works. It was made clear to Mr Singh and the other drivers during the initial consultation period that their positions may be affected by the introduction of the ‘major change’ and the result would be that some Agitator Driver positions would be made redundant. I am satisfied that Boral was compliant with the Agreement in that on 21 October 2020 it consulted with all of the affected Melbourne Metro drivers.

[99] Mr Singh gave evidence that the Google Meet call was off poor quality however he understood that some of the Agitator Driver roles were going to be made redundant. Due to the impact of COVID-19 the consultation meeting was appropriately conducted over Google Meet and the TWU were in attendance. The evidence supports a finding that Mr Flack and Mr Pjanic made it clear to all the drivers at the meeting who were subject to the Assessment Matrix that they were all potentially in line to be selected for redundancy. 142

[100] Mr Singh submits that at no stage since the Google Meet on 21 October 2020 until the termination letter was handed to him on 30 October 2020 was a one-on-one consultation held with him. I do not find this to be the case. It was not disputed that after the first meeting on 21 October 2020, Mr Singh was sent a letter detailing the relevant information regarding the consultation process. The letter provided details about the proposed change, the impact of the change being the need to reduce the Agitator Driver workforce in Boral’s metropolitan concrete business and that employees could speak to members of the leadership team about the proposed changes. The 21 October 2020 letter also provided details about the skills assessment and how it was to be used in determining the positions that would be made redundant.

[101] Furthermore, on 22 October 2020 after receiving the letter Mr Singh had a one-on-one conversation with Mr Pjanic about the content of the meeting being the proposed redundancy and the Skills Matrix, however Mr Singh made no attempt to discuss or challenge the assessment outcomes at that time. I am satisfied that drivers who requested a copy of the Assessment Matrix were provided with the documentation and the Skills Matrix was not kept a secret as Mr Singh has implied. Mr Singh on his own admission did not request a copy of the Assessment Matrix and I am satisfied it was available to him if he had made such a request.

[102] Mr Singh gave evidence that further discussions took place between Mr Singh and Mr Pjanic on 26 October 2020 during which they again discussed the Skills Matrix. The fact that Mr Singh did not request a copy of the Skills Matrix and a copy was not provided to him is irrelevant. I am satisfied that further one-on-one consultation took place between Mr Pjanic and Mr Singh during the 22 October and 26 October 2020 meetings.

[103] Mr Singh concedes that further consultation was held after he was served with the termination letter on 30 October 2020 while he was working. He had been called while he was on a break at work and handed a termination letter and a jobs list. Mr Singh was informed that should a suitable redeployment position be identified his termination would not take effect.

[104] Mr Singh also raised concerns about the accuracy of the skills matrix because he had not at any stage during his employment been performance managed or received any official warnings for his conduct. Mr Singh was not dismissed for reasons of performance. I note that Boral state there is no suggestion that Mr Singh was a poor performer or that his performance was at a level where he should have been counselled or disciplined, however when he was assessed on the different criterion he fell within the bottom six of the group of 23 drivers. 143 It is for that reason he was selected along with a number of other drivers to be made redundant.

[105] I am satisfied that Boral have comprehensively complied with its consultation obligations under the Agreement and there doesn’t seem to be any suggestion or inference in the evidence as to what, if anything, would have changed or that there would have been any difference if there was a longer consultation period. The period of nine days between the initial consultation meeting on 21 October 2020 and the final discussion notification meeting with Mr Singh on 30 October 2020 was more than reasonable and appropriate in the circumstances. I am satisfied that the consultation about a ‘major change’ was conducted in accordance with the terms set out in clause 10.1 of the Agreement.

Redeployment (s.389(2))

[106] Mr Singh submits that Boral did not take all reasonable steps to consider redeployment opportunities as required under section 389(2) of the Act. Mr Singh submits that the seventh position to be made redundant opened up a vacant position to which he could have been redeployed into. Boral accepted a voluntary redundancy which resulted in seven positions being made redundant instead of the proposed six positions. Mr Singh could not have been redeployed into the seventh position because the position no longer existed due to it being made redundant. I am satisfied that by Boral agreeing to accept the voluntary redundancy there were no additional vacancies created to which Mr Singh could have been redeployed.

[107] Boral had identified some interstate driver roles available that Mr Singh would have been able to transition into because he had the necessary skills and qualifications, subject to a selection process should any other redundant drivers also put their hand up for the vacant roles. The driver role in Queensland was discussed at the meeting on 30 October 2020 and Mr Singh subsequently advised Boral, after discussing the potential redeployment with his family, that he wasn’t prepared to take that up. 144

[108] Mr Singh has not identified any other suitable or more preferred roles that he could have been redeployed into. In the circumstances of this case, I am satisfied that there is nothing further that Boral could or should have done in terms of identifying, considering and discussing reasonable redeployment options with Mr Singh.

[109] In response to Mr Singh’s submission that it would have been a viable option to redeploy Mr Singh to employment with one of the contractors or fleet operators, I note that they are separate businesses, not entities owned or controlled by Boral. Although it would have been good practice for Boral to assist in identifying any vacancies within those companies, there is no obligation for them to do so. Further it was open to Mr Singh to make an application to any of those businesses should they have a suitable vacancy and he did not need to rely on Boral in doing so. I am satisfied Boral made reasonable attempts to redeploy Mr Singh.

Conclusion

[110] For the purposes of s.389(1)(a), I am satisfied that due to the operational requirements of Boral’s enterprise, being the reduction of forecast works, Mr Singh’s job was no longer required to be performed by anyone.

[111] I am satisfied there is no basis to conclude that it would have been reasonable to redeploy Mr Singh for the purposes of s.389(2) of the Act.

[112] I am satisfied that Boral has complied with the consultation requirements as set out in section 10.1 of the Agreement.

[113] The Commission has no jurisdiction to consider the merits of Mr Singh’s unfair dismissal application and his application for an unfair dismissal remedy is therefore dismissed. An order 145 to this effect will accompany this decision.

COMMISSIONER

Appearances:

R. Dalal of Asky International Lawyers for the Applicant
R. Marshall of FCB Workplace Law for the Respondent

Hearing details:

2021.
Melbourne (by video link via Microsoft Teams):
February 16.

Printed by authority of the Commonwealth Government Printer

1 Exhibit R1 at [3]

2 Exhibit A1 at [5]

3 Exhibit R5 at [4]

4 Exhibit R1 at [3]

5 Ibid at [7]

6 Ibid

7 Ibid at [8]

8 Ibid

9 Exhibit R3 at [12]

10 Exhibit A1 at [6] – [7]

11 Ibid at [22] and [25]

12 Ibid at [26]

13 Ibid at [15]

14 Ibid at [27] and Transcript PN463

15 Ibid at [28]

16 AE508897

17 Exhibit R1 at [13]

18 Ibid at [13] and Exhibit R3 at [12]

19 Exhibit R1 at [14]

20 Ibid at [15]

21 Ibid at [16]

22 Ibid at [17]

23 Ibid at [17]

24 Ibid at [19]

25 Ibid at [20] and Exhibit R3 at [15]

26 Exhibit R1 at [21]

27 Ibid at [22] and Exhibit R3 at [16] – [19]

28 Exhibit R1 at [23]

29 Ibid at [24], Exhibit R3 at [21] – [22] and Exhibit R5 at [9]

30 Exhibit R1 at [25] and Exhibit R3 at [23] – [24] and Attachment RF2

31 Exhibit R1 at [25] and Exhibit R3 Attachment RF2

32 Exhibit R1 at [27]

33 Ibid at [28]

34 Ibid at [29]

35 Ibid at [30]

36 Ibid at [31]

37 Ibid at [32]

38 Ibid at [32] and Exhibit R3 at [37] – [38] and Attachment RF3

39 Exhibit R1 at [32]

40 Ibid at [33]

41 Ibid at [34]

42 Exhibit A1 at [15]

43 Ibid at [27]

44 Ibid at [25]

45 Ibid at [17]

46 Ibid at [18]

47 Ibid at [19]

48 Ibid at [20]

49 Ibid at [21]

50 Ibid at [22]

51 Ibid at [23]

52 Ibid at [24]

53 Ibid at [26]

54 Ibid at [28]

55 Ibid at [29]

56 Ibid at [30] – [32]

57 Ibid at [33]

58 Exhibit R3 at [1]

59 Ibid at [12]

60 Ibid at [13]

61 Ibid at [13]

62 Ibid at [14] and Transcript PN125

63 Ibid at [14]

64 Ibid at [15]

65 Ibid at [16]

66 Ibid at [20]

67 Ibid at [17] and Transcript PN130

68 Ibid at [17] – [18]

69 Ibid at [18]

70 Ibid at Attachment RF1

71 Ibid at [21]

72 Ibid at [22]

73 Exhibit R4 at [2]

74 Ibid at [3] – [4]

75 Exhibit R3 at [23] and Attachment RF2

76 Ibid at [25]

77 Ibid at [26] and Transcript PN40

78 Transcript PN160 - 161

79 Ibid PN157 - 159

80 Exhibit R3 at [27]

81 Ibid at [28]

82 Ibid at [30] and Transcript PN126 - 127

83 Transcript PN79 - 81

84 Exhibit R3 at [30] - [32]

85 Ibid at [33] – [34]

86 Ibid at page 5

87 Ibid at [36] and Attachment RF4

88 Ibid at [35] and [37]

89 Ibid at [38]

90 Ibid

91 Ibid

92 Ibid at [39]

93 Ibid at [40]

94 Ibid at [41]

95 Exhibit R5 at [6]

96 Ibid at [7] and Transcript PN238

97 Ibid at [8]

98 Ibid at [9]

99 Ibid at [10] and Transcript PN210 - 211

100 Ibid at [10]

101 Ibid at [11]

102 Ibid at [12] and Transcript PN218 - 219

103 Ibid at [13]

104 Ibid at [14] and Transcript PN181

105 Ibid at [15]

106 Ibid and Transcript PN202

107 Ibid at [17]

108 Ibid at [18] and [22]

109 Ibid at [22]

110 Ibid at [16] and [18]

111 Ibid at [19]

112 Ibid at [20]

113 Ibid at [23]

114 Exhibit A2 at [1]

115 Ibid at [2]

116 Ibid at [3] – [5]

117 Ibid at [6]

118 Ibid at [7]

119 Ibid at [8]

120 Ibid at [9]

121 Ibid at [10]

122 Ibid at [11]

123 Ibid at [12]

124 Ibid at [12]

125 Ibid at [13] and Transcript PN297

126 Ibid at [13] - [14] and Transcript PN300 and 316

127 Transcript PN300 and 318 - 320

128 Exhibit A2 at [15] and Transcript PN331 - 332

129 Transcript PN335 - 336

130 Ibid PN337 - 338

131 Ibid PN297

132 Exhibit A2 at [16]

133 Transcript PN288 and 296

134 Exhibit A2 at [17] – [19] and Transcript PN362 - 363

135 Transcript PN350

136 Ibid PN353

137 Ibid PN355 - 360

138 Exhibit A2 at [20] – [21]

139 Transcript PN364

140 Ibid PN406

141 Ibid PN411

142 Ibid PN412

143 Ibid PN471 - 472

144 Ibid PN421

145 PR728980

Mr Bhagwant Singh v Boral Resources (Vic) Pty Ltd

[2021] FWC 869

28 APRIL 2021

DECISION