Mr Daniel Milliken v GT Recycling

[2015] FWC 2700

[2015] FWC 2700

FAIR WORK COMMISSION

DECISION

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

Mr Daniel Milliken
v
GT Recycling
(U2014/15703)

VICE PRESIDENT WATSON MELBOURNE, 20 APRIL 2015

Application for unfair dismissal remedy - whether termination of employment harsh, unjust or unreasonable - whether valid reason for dismissal - dismissal related to operational reasons - application dismissed - Fair Work Act 2009, ss.387 and 394.

[1] This decision, edited from a decision on transcript on 13 April 2015, concerns an application for unfair dismissal remedy by Mr Daniel Milliken pursuant to s.394 of the Fair Work Act 2009 (the Act). The application concerns the termination of Mr Milliken’s employment with GT Recycling. The termination occurred on 14 November 2014.

[2] The question that I need to determine is whether that termination was harsh, unjust or unreasonable within the meaning of that phrase in the Act. Section 387 of the Act requires me to consider a number of criteria in coming to a decision in that matter. I propose to consider each of those matters so far as they are relevant to the facts in this case.

[3] The first is whether there was a valid reason for the dismissal related to the person's capacity or conduct, including its effect on the safety and welfare of other employees. If performance issues were the only consideration, it is unlikely that there would be a termination of employment.  The evidence establishes that the employer made a decision to reduce its workforce and selected Mr Milliken as the person to be terminated based on a consideration of skills and to some extent, performance, by reference to the skills and performance of other employees within its employ.

[4] The operative reason, therefore, for the termination was redundancy or operational reasons and the evidence establishes that those circumstances arose because of a downturn in business related to a drop in oil prices and a desire to reduce the labour costs in the business.  The evidence establishes that there has been a reorganisation in the work performed at the recycling business.  Duties that were previously performed by Mr Milliken in the shredding machine have been distributed to other employees.  A number of employees have done work on the shredder machine from time to time, but Mr Milliken has not been replaced and there has been a net reduction in the number of employees consequent upon his termination.

[5] I consider that those circumstances amount to a valid reason for the termination.  It is well established that legitimate business decisions regarding the numbers of employees legitimately which fall within the discretion of the employer, and a termination for such reasons is usually only unfair if there is something about the procedure or the genuineness of the employer’s decision, such as would warrant a finding that the operative reason was not valid for some reason or another.

[6] There is evidence that the employer, in coming to its decision to reduce the size of its workforce, considered the matter over some weeks and it appears, with some reluctance, came to the decision that it would reduce its workforce.  It conveyed that decision to Mr Milliken on the day of the dismissal, 14 November.  It appears that the decision was not taken lightly.  It did follow a consideration of other employees and, even though there was no consultation with Mr Milliken, it was unlikely that any consultation would change the result in any way from the decision that the company had made.  So I find that there was a valid reason for the dismissal and it related to the business circumstances and the decision to reduce the size of the workforce.

[7] The next factor is whether the person was notified of that reason and, related to that, whether there was an opportunity to respond to that reason relating to the capacity or conduct.  Given that this is really a redundancy situation and these factors relate more to questions of termination on the grounds of conduct, I do not think those matters are particularly relevant, although I do note that the comments I have made in relation to consultation and the unlikely change in circumstances if there was more consultation and an opportunity to suggest alternatives in a more formal manner.

[8] The next factor is whether there was an unreasonable refusal to allow a support person to be present to assist in any discussions relating to dismissal.  It is not alleged that there was an unreasonable refusal.  There is no evidence of any request for a support person.  This is a small business and I do not consider that that factor is particularly relevant here.

[9] The next factor is if the dismissal related to unsatisfactory performance, whether the person had been warned about the unsatisfactory performance before the dismissal.  In an indirect way, performance was taken into account.  The supervisor of Mr Milliken, Mr Tim McLean, said that Mr Milliken was a hard worker, but that aspects of his job were not done with sufficient scrutiny and those factors were taken into account.  There was no formal warning, but it appears that those matters had been discussed with Mr Milliken on previous occasions.  I note that those matters were not the reason for the termination, the reason was the business circumstances, but the performance did have a bearing on the selection of the particular employee to be let go.  So I do not consider that there is any need or any finding that there should have been more formal warnings in relation to performance than were given to Mr Milliken regarding aspects of his performance.

[10] The next factors relate to the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in affecting the dismissal and, related to that, the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal.  As I have indicated, this is a small business and a family business.  It appears that its size did have a bearing on the type of procedures.  The procedures were informal and I take those factors into account in considering the overall question.

[11] The main other factor that is relevant in this matter is the allegation that the decision to select Mr Milliken for redundancy was based on him having made a worker’s compensation claim and it is said that comments made at the time the claim was made and comments made at the termination meeting create an inference that there is a relationship between the making of the worker’s compensation claim and the decision to select Mr Milliken for redundancy when the company decided to reduce its workforce.

[12] Evidence has been given by the decision makers in this matter, Mr Trevor McLean and Mr Tim McLean, and also the administrative assistant, Ms Zorn, who was involved in dealing with discussions and administrative details regarding the worker’s compensation claim.  I do not consider that it has been made out that the worker’s compensation claim had any bearing on the decision to select Mr Milliken for redundancy.  Mr Milliken may feel that that was the case, but I find on the evidence that his worker’s compensation claim was not relevant to the decision to select him for redundancy.

[13] I take that factor into account.  I take into account the personal impact on Mr Milliken of losing his job at the time that he lost it.  And while those factors are regrettable, in my view, they do not alter the outcome of the question of whether the termination by the employer was harsh, unjust or unreasonable.  In my view, in all of the circumstances, the termination was not harsh, unjust or unreasonable.  I find to that effect and in the light of that finding, it follows that I dismiss the application for unfair dismissal.

VICE PRESIDENT WATSON

Appearances:

Mr Daniel Milliken on his own behalf.

Mr Thomas Page of Victorian Employers’ Chamber of Commerce and Industry and Mr Trevor McLean on behalf of GT Recycling.

Hearing details:

2015.

Melbourne.

13 April.

Final written submissions:

Mr Milliken on 16 February 2015.

GT Recycling on 10 March 2015.

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