Mr Henry Ray (Te Reiwhati) Vercoe v Whicon Pty Limited
[2010] FWA 5985
•9 AUGUST 2010
[2010] FWA 5985 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Henry Ray (Te Reiwhati) Vercoe
v
Whicon Pty Limited
(U2009/15041)
COMMISSIONER ASBURY | BRISBANE, 9 AUGUST 2010 |
Application for unfair dismissal remedy - jurisdiction - failure of applicant to attend.
Background
[1] This decision concerns an application by Mr Henry Ray (Te Reiwhati) Vercoe (the Applicant) for relief in relation to the termination of his employment from Whicon Pty Ltd (the Respondent) pursuant to s.394 of the Fair Work Act 2009 (the Act). The application was lodged with Fair Work Australia on 30 December 2009.
[2] On 29 January 2010 Fair Work Australia received an Employer’s Response from the Respondent’s representatives which included a jurisdictional objection on the grounds that the Applicant was engaged under a casual contract of employment, and that the reason for the Applicant’s dismissal was a case of genuine redundancy.
[3] The matter was unable to be resolved at a conciliation conference on 3 February 2010 and was subsequently referred to me for determination as to whether the Applicant’s dismissal was a case of genuine redundancy.
[4] The application was listed for Jurisdiction hearing, by telephone, on 10 March 2010. The parties were requested to provide contact names and numbers by close of business on 1 March 2010. The Notice of Listing was sent to the Applicant via the email address and the postal address provided in the application.
[5] Fair Work Australia did not receive contact details from the Applicant. Attempts were made to contact the Applicant on 9 March 2010, the day prior to the hearing, and again on 10 March 2010, the day of the hearing. No contact could be made with the Applicant.
[6] On 16 March 2010 the following letter was sent to the Applicant:
“Please find attached a copy of a Notice of Listing advising you that your application made pursuant to s.394 of the Fair Work Act 2009 (the Act) was listed for Jurisdiction Hearing, by Telephone at 2.00pm Wednesday, 10 March 2010 in Brisbane. The Notice of Listing was sent to you by way of email and post on 10 February 2010.
The Notice of Listing required contact numbers to be provided by close of business on 1 March 2010. You failed to advise the Registry or my Associate (or the Respondent) whether you would be participating in the Jurisdiction Hearing. Several attempts to contact you by telephone were unsuccessful.
If I do not receive a response from you by 5.00pm Friday, 26 March 2010 that you seek to give evidence or make oral submissions in this matter, your application will be dealt with taking into account documentation contained on the file. This may result in your application being dismissed on jurisdictional grounds.
Should you decide that you no longer wish to proceed with your application, you are requested to sign and date the attached Notice of Discontinuance and return it to this office at your earliest convenience.”
[7] To date no response has been received from the Applicant.
[8] Fair Work Australia may dismiss an application pursuant to s.587 of the Act which is in the following terms:
“587 Dismissing applications
(1) Without limiting when FWA may dismiss an application, FWA may dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
(2) Despite paragraphs (1)(b) and (c), FWA must not dismiss an application under section 365 or 773 on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.
(3) FWA may dismiss an application:
(a) on its own initiative; or
(b) on application.”
Legislation
[9] Section 385(d) of the FW Act provides that a person has been unfairly dismissed if FWA is satisfied that the dismissal is not a case of genuine redundancy. Section 389 of the FW Act provides that:
“389(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.”
[10] Schedule 3, Part 5, Division 3, item 36(a) of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) provides that Part 3-2 of the FW Act applies on and after the day of the Workplace Relations Act repeal day as if the reference in s.389(1)(b) of the FW Act to a modern award, included a reference to an award based transitional instrument.
[11] The effect of s.389 of the FW Act is that where the employer establishes that the dismissal of an employee was for the reason set out in s.389(1)(a) and that the obligations in s.389(1)(b) and s.389(2) with respect to consultation and redeployment have been met, the employee cannot pursue a remedy for unfair dismissal on the ground that the selection of the employee for redundancy was otherwise unfair. Further, where the employer establishes that the dismissal was a case of genuine redundancy, the employee cannot pursue a remedy for unfair dismissal on the ground that the employee was selected for redundancy for a reason that constitutes a contravention under the general protection provisions of the FW Act. 1
Material provided by the Respondent
[12] The material provided by the respondent in the Form F3 - Employer Response to Unfair Dismissal Application, indicates that the Applicant’s employment was governed by the Quarry, Crushed Stone, Sand and Gravel Industry Award - State (the Award), a notional agreement preserving State award. That Award operates as a common rule, and by virtue of Schedule 3 of the Transitional Act, is an award based transitional instrument.
[13] The material provided by the Respondent further indicates that the Applicant was employed on a casual basis. On 16 December 2009 the Respondent wrote to the applicant to inform him that his position was to be made redundant due to the sale of the Blackwater Quarry. The Applicant was requested to attend a meeting on 21 December 2009 to discuss this matter, and to put to the Respondent any issues which he believed required consideration. On 21 December 2009, a firm of Solicitors corresponded with the Respondent, on behalf of the Applicant, indicating that the offer of a meeting was declined, and requesting a meeting after 4 January 2009.
[14] On 21 December 2009, the Respondent wrote to the applicant informing him that with effect from 18 December 2009 the Respondent ceased operating road transport vehicles due to the pending sale of the Blackwater Quarry. The letter of 21 December further informed the Applicant that he would not be offered any further casual contracts, and that his details would be forwarded to the new operator of the quarry.
Material provided by the Applicant
[15] The material provided by the Applicant in the Form F2 - Application for Unfair Dismissal Remedy raises allegations to the effect that the Applicant was dismissed because he made complaints about his wages and conditions of employment. The material also indicates that the Applicant involved the Transport Workers’ Union in these matters. It is also alleged by the Applicant that his hours of work were reduced because of these matters.
Conclusions
[16] Given the failure of the Applicant to comply with Directions and to attend the scheduled hearing into this matter, and the warning to him about the repercussions of this conduct, I have considered the material on the file, and concluded as follows. I accept that the operational requirements of the Respondent changed, by virtue of the sale of the Blackwater Quarry and that it no longer required the Applicant’s job to be done by anyone because of this change.
[17] I also accept that the applicant was a casual employee, and that the Award provisions requiring consultation in relation to redundancy do not apply with respect to casual employees. On the basis of the material provided by the Respondent, I also accept that the provisions of the Award with respect to notification and consultation in relation to the introduction of workplace change, which do apply with respect to casual employees, were complied with.
[18] There is no evidence about whether it would have been reasonable in the circumstances to redeploy the Applicant within the Respondent’s Enterprise or the enterprise of an associated entity. I am unable to make a finding about this matter.
[19] All of the matters raised by the Applicant go to the reasons for his selection and alleged contraventions of the general protection provisions of the FW Act. In circumstances where the Applicant’s dismissal was a case of genuine redundancy, these matters may not be pursued by way of an application for an unfair dismissal remedy.
[20] Fair Work Australia has made all reasonable attempts to provide the Applicant with the opportunity to have his application dealt with and he has failed to make himself available for that purpose. In all of the circumstances I am satisfied that the power for the Tribunal to dismiss the application upon its own initiative pursuant to s.587(3)(a) of the Act, should be exercised. The application for an unfair dismissal remedy lodged by Mr Henry Ray (Te Reiwhati) Vercoe (U2009/15041) is dismissed. I Order accordingly.
COMMISSIONER
1 Fair Work Bill 2008 Explanatory Memorandum paragraph 146; Spruyt v Jaston Concrete Cartage Pty Limited [2010] FWA 5509.
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