Mr Francesco Di Masi v Coastal Fisheries Pty Ltd ATFT Sea Empire Unit Trust
[2010] FWA 6280
•20 AUGUST 2010
[2010] FWA 6280 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Francesco Di Masi
v
Coastal Fisheries Pty Ltd ATFT Sea Empire Unit Trust
(U2010/5316)
COMMISSIONER WILLIAMS | PERTH, 20 AUGUST 2010 |
Termination of employment.
[1] Mr Di Masi, the applicant has applied for an unfair dismissal remedy pursuant to s. 394 of the Fair Work Act 2009 (the Act). The respondent is Coastal Fisheries Pty Ltd.
[2] The application was the subject of a conference before a conciliator however the matter has not been resolved.
[3] The applicant was employed on 15 April 2008 and terminated on 11 January 2010.
[4] The respondent objects to the application, arguing that the dismissal was a genuine redundancy.
[5] Section 385 specifies when a person has been dismissed. Section 388 and 389 respectively define genuine redundancy:
s. 385 What is an unfair dismissal
A person has been unfairly dismissed if FWA is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.
s.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.
[6] This matter was listed for a hearing and the parties were directed respectively to provide written statements ofevidence and an outline of submissions to the tribunal and to each other. The applicant requested an extension of time to provide his materials which was granted however ultimately no written materials were filed by the applicant or on his behalf. Written materials were then filed by the respondent.
[7] At the hearing both parties were self represented.
Background
[8] The respondent is a seafood processing business located in Bassendean Western Australia. Mr Di Masi was employed as a fish filleter.
[9] Mr Di Masi gave evidence that before Christmas the respondents manager Mr Martin Connolly came to him and said he could take two weeks holidays and that he should come back to work on 11 January 2010. Mr Di Masi agreed with this. On the 4th or 5th of January 2010 Mr Di Masi says he received a letter from Mr Connolly 1.
[10] The letter reads as follows:
“Dear Francesco,
I regret to inform you that due to change (sic) in the company structure from the 11th January, your employment with Coastal Fisheries Pty Ltd will cease.
I was unable to contact you via the phone as I do not have your number on file.
Please confirm you have received this letter by phone.
Thank you for your work over the past 18 months.
Sincerely,
Martin Connolly
Manager”
[11] Mr Di Masi says he was surprised by the statement in the letter about the change in structure and doubts that the company could change the structure in just four or five days.
[12] His evidence was that during his employment he had been continually bullied. He specifically says he was verbally abused, called names, falsely accused of stealing, made fun of and ridiculed by other employees including Mr Connolly.
[13] Mr Di Masi believed this bullying was intended to force him to leave his job. He says that the reason for his dismissal explained by Mr Connolly in the letter of termination is a lie. Responding to the reasons put forward by the employer for his dismissal he does not accept that the filleting work was not profitable and he says that he was always willing and did more than just his own job, including washing down benches and putting away rubbish.
[14] Mr Di Masi agreed that the employer employed less than 15 employees at the time of his dismissal.
[15] Mr Connolly gave evidence for the respondent and is the manager/director of the business.
[16] His evidence is that Mr Di Masi was dismissed due to a change in the products the respondent provided to one of its customers, the Progressive IGA Group. Between July 2009 and December 2009 the respondent processed and supplied saddle tail snapper fillets for the Progressive IGA group. This product generated a gross profit of $23,000 before allowing for the cost of labour. Mr Connolly explained that the cost of employing a fish filleter to produce this product, which was Mr Di Masi, was $26,000 +9% superannuation. In addition there were other costs to be accounted for such as receiving the fish, sorting, storing, packing and delivering the product and also the cost of financing stock.
[17] Because the gross profit was less than the total production costs the respondent decided to increase the price charged to Progressive IGA group by approximately 20%. The consequence of this was a drop in the demand for the saddle tail snapper fillets from Progressive IGA Group. Because of this reduction in demand for filleted fish Mr Connolly’s evidence was that the job Mr Di Masi was doing was no longer required.
[18] Mr Connolly's says that both himself and another employee Mr Edmonds, who is his second in charge, are also capable fish filleters and when necessary they now fill in to meet occasional gaps in production.
[19] Mr Connolly in his evidence denies that he ever abused Mr Di Masi.
[20] The evidence of Mr Connolly is that at the time of the dismissal of the applicant the respondent had only seven employees and there was no other employment available that could be offered to Mr Di Masi with the respondents business and there are no associated businesses.
[21] Mr Connolly's evidence was that he did not attempt to discuss with Mr Di Masi the change in structure and how it would affect him because he had no contact phone number for him and decided it was probably best to just make a clean break.
Consideration
[22] Having considered the evidence of both Mr Di Masi and Mr Connolly I do accept that during his employment Mr Di Masi was at times bullied by other employees including Mr Connolly. Mr Di Masi however says that he experienced this throughout all of his period of employment. This inappropriate behaviour and poor treatment by other employees does not then obviously explain why he was dismissed. Mr Di Masi's evidence as to the reasons for his dismissal are not more than speculation.
[23] The evidence of Mr Connolly as to the reasons for the dismissal were detailed and are consistent with the letter of termination provided to Mr Di Masi at the time of his dismissal.
[24] My finding is that the reason for Mr Di Masi’ s dismissal was that the respondent had decided that it no longer required the job that Mr Di Masi was doing to be done by anyone. The reason for this was that the respondent had decided that the saddle tail snapper fillet product was not profitable and when they increased the charge to customers to remedy this a key customer significantly reduced their demand for this product. This in turn reduced the amount of filleting to be done which was the work that Mr Di Masi had been doing. Consequently I find that the respondent no longer required this job to be done by anyone because of a change to the respondent’s operational requirements.
[25] The reasons for the applicants dismissal in this instance were ones that fall within the meaning of section 389 (1)(a). In addition I find that it would not have been reasonable in the circumstances to redeploy Mr Di Masi within the enterprise and I accept that there were no associated entities to be considered for the purposes of redeployment.
[26] There remains the requirement of section 389 (1) (b) to be considered.
[27] The dismissal of Mr Di Masi occurred in January 2010. Modern Awards of Fair Work Australia generally became operative on 1 January 2010. One such award was the Seafood Processing Award 2010.
[28] I have reviewed the terms of this award. Clause 4 Coverage indicates that this award covers employers in the seafood processing industry and their employees covered by the award’s classifications. The seafood processing industry is defined in Clause 3 Definitions and Interpretation to include amongst other things the filleting of fish. These clauses are set out below and the relevant parts have been underlined.
4. Coverage
4.1 This industry award covers employers throughout Australia in the seafood processing industry and their employees who are covered by the classifications in this award to the exclusion of any other modern award.
3. Definitions and interpretation
3.1 In this award, unless the contrary intention appears:
.......
seafood processing means the following industries and parts of industries conducted on land post harvesting:
(a) the receipt, sorting and handling of fish, seafood and marine products whether wild or farmed, freshwater or saltwater including but not limited to scale fish, crustaceans, molluscs, and other marine species;
(b) the preparing, cooking, preserving, filleting, gutting, shucking, drying, smoking, freezing, refrigerating, washing, grading, processing and/or canning of fish, seafood and marine products;
(c) the packaging, labelling, palletising, cold storage, chilling and/or freezing, preparing for sale, packing and despatching of fish, seafood and marine products;
(d) the cleaning and sanitising of tools, equipment and machinery used to process fish, seafood and marine products; and
(e) the marketing in fish markets and selling by wholesale of fish, seafood and marine products.
[29] The classifications within the Award are set out in Clause 15 Classifications and adult minimum wages and the meaning of each classification is explained in Schedule B to the award. Again these provisions are set out below and underlined where relevant.
Part 4—Minimum Wages and Related Matters
15. Classifications and adult minimum wages
15.1 Adult employee minimum wages
(a) The classifications and minimum wages for an adult employee, other than one specified in clause 15.1(b), are set out in the following table:
Classification level | Minimum weekly wage | Minimum hourly wage |
$ | $ | |
Process Attendant Level 1 | 543.90 | 14.31 |
Process Attendant Level 2 | 552.10 | 14.53 |
Process Attendant Level 3 | 606.50 | 15.96 |
Process Attendant Level 4 | 637.60 | 16.78 |
(b) The following adult employees are not entitled to the minimum wages set out in the table in clause 15.1(a):
(i) a trainee (see clause 16—Trainee minimum wages); and
(ii) an employee receiving a supported wage (see Schedule D—Supported Wage System).
(c) The classification definitions are set out in Schedule B—Classification Structure and Definitions.
Schedule B—Classification Structure and Definitions
B.1 Classification structure
.........
B.1.2 Process Attendant Level 2
(a) Point of entry
(i) Process Attendant Level 1; or
(ii) Proven and demonstrated skills, including industry certification as appropriate, at Level 2.
(b) Skills/duties—indicative tasks
Indicative of the tasks which an employee at Level 2 may perform are the following:
(i) Filleting,
(ii) Weighing,
(iii) Cleaning of fish and/or shellfish,
[30] These terms of the award are in my view such that the respondent at the time of the dismissal of Mr Di Masi was covered by the award and the award applied to his employment.
[31] The relevance of this is that at the time of the dismissal in January 2010 the respondent had an obligation set out in a Modern Award that applied to the applicants employment to consult him about the redundancy. The details of this obligation are contained in Clause 8 Consultation regarding major workplace change, which is set out below.
8. Consultation regarding major workplace change
8.1 Employer to notify
(a) Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must notify the employees who may be affected by the proposed changes and their representatives, if any.
(b) Significant effects include termination of employment; 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 or locations; and the restructuring of jobs. Provided that where this award makes provision for alteration of any of these matters an alteration is deemed not to have significant effect.
8.2 Employer to discuss change
(a) The employer must discuss with the employees affected and their representatives, if any, the introduction of the changes referred to in clause 8.1, the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees and must give prompt consideration to matters raised by the employees and/or their representatives in relation to the changes.
(b) The discussions must commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in clause 8.1.
(c) For the purposes of such discussion, the employer must provide in writing to the employees concerned and their representatives, if any, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees provided that no employer is required to disclose confidential information the disclosure of which would be contrary to the employer’s interests.
[32] It is the employer's position which I have accepted that they had made a definite decision to make a major change to their production and structure that would affect Mr Di Masi.
[33] In summary then the above award provision with respect to consultation obliged the respondent to:
1. Notify Mr Di Masi whom would be affected by the proposed change in production.
2. As an affected employee discuss with Mr Di Masi the introduction of the change and the effect likely on him and discuss measures to avert or mitigate the adverse effect on him.
3. Give prompt consideration to matters raised by Mr Di Masi in relation to the change.
4. Hold those discussions as early as practicable after a definite decision had been made to make the change.
5. Provide in writing to Mr Di Masi all relevant information about the change including the nature of the change proposed, the expected effects of the change on him and any other matters likely to affect him.
[34] The evidence discloses that the respondent did notify Mr Di Masi and did provide to him in writing information about the change and the effect on him. However the evidence also demonstrates that there were no discussions with him about the introduction of the change or the likely effect on him and there were no discussions about measures to avert or mitigate the adverse effect on him and consequently there was no opportunity for him to raise any matters for the respondent to consider.
[35] In this instance then I find that the respondent has not complied with the obligation in a modern award that applied to the employment of Mr Di Masi to consult about redundancy. Consequently because this requirement of s. 389(1)(b) has not been met the dismissal of Mr Di Masi is not a case of genuine redundancy within the meaning of s. 389.
The Small business fair dismissal code
[36] I am satisfied in this instance that the respondent is a small business and so the issue of compliance with the Small Business Fair Dismissal code (the Code) is relevant. The Act explains when a dismissal is consistent with the Code as follows:
s. 388 The Small Business Fair Dismissal Code
(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.
(2) A person’s dismissal was consistent with the Small Business Fair Dismissal Code if:
(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and
(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.
[37] This dismissal here was for reason of redundancy and in that regard I adopt the approach of Vice President Watson in similar previous matters on the question of the relevance of the Code to such as dismissal 2.
[38] The Code does not deal at all with dismissals on the ground of redundancy. Therefore it cannot be said that the respondent here has “complied” with the Code when dismissing the applicant whose job was redundant. Under s. 388 (2) such compliance must necessarily be established for the tribunal to find that the dismissal was “consistent” with the Code and therefore that the tribunal cannot continue on to consider the merit of the application (section 385 (c)). I find that here the dismissal was not consistent with the Code.
[39] As required by section 396 having first considered and determined that the dismissal in this case was not consistent with the Code and also that it was not a case of genuine redundancy I turn now to consider the merit of this application and so whether the dismissal was harsh, unjust or unreasonable.
Was the dismissal harsh, unjust or unreasonable?
[40] Section 387 specifies the matters that the tribunal must take into account in considering whether or not in this case the dismissal was harsh, unjust or unreasonable. These are set out below.
s.387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWA considers relevant.
[41] In this case there was not “a valid reason for the dismissal related to the person’s capacity or conduct” but rather the reason for dismissal was the changed operational requirements of the respondent. Consequently subsections 387(a), (b), (c), (d) and (e) are not relevant matters in this case.
[42] In this instance the very small size of the respondent's enterprise and the lack of human resource management specialists or expertise was likely to and in all probability did impact on the procedure followed in effecting the dismissal. The respondent seems to have been unaware of the requirements to consult set out in the new modern award that had come into effect only a few days prior to the respondent advising Mr Di Masi that his job was redundant. Consequently the consultation obligations in the model award were not followed fully.
[43] The respondent however did notify Mr Di Masi that he would be affected by the proposed change in production. This notification to him was in writing, was given promptly after the decision was made and occurred in advance of the termination having effect.
[44] The failure of the employer to comply with its award consultation obligations was limited to not discussing with Mr Di Masi the changes and any measures that could be taken to avert or mitigate the impact on him. It is clear from the evidence that in this business given its small size there were no obvious measures that could have been taken to avoid Mr Di Masi losing his job in the circumstances. Mr Di Masi has not suggested that there was any other course of action that could have been taken or any other things done that would have avoided him losing his job or otherwise assisted him. The discussion if it had occurred as required by the award would have changed nothing. The procedural failure of the employer to fully comply with the award consultation obligation did, in all probability, have no practical impact on Mr Di Masi.
[45] In considering whether or not the dismissal was harsh, unjust, or unreasonable another relevant factor is the length of service of the employee which in this case was less than two years.
[46] Considering all these matters above, my conclusion is that there was a sound reason for the dismissal of Mr Di Masi which was that his job was no longer required to be done by anyone. Whilst the full consultation required by the modern award did not occur this procedural deficiency in this instance did not have any practical implication for the applicant. Consequently I find that that the termination was not harsh, unjust or unreasonable. Mr Di Masi therefore has not been unfairly dismissed.
[47] This application is dismissed.
COMMISSIONER
Appearances:
Mr F Di Masi, the Applicant
Mr M Connolly, on behalf of the Respondent
Hearing details:
2010.
Perth:
August 10.
1 Exhibit A1
2 2010 FWA 3125 at [13] and 2010 FWA 3707 at [13]
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