Mr Horst Siegfied Jaksch v Bradken Resources Pty Ltd
[2010] FWA 3980
•7 JUNE 2010
[2010] FWA 3980 |
|
DECISION |
Workplace Relations Act 1996
s.643 - Application for relief re (Harsh, Unjust or Unreasonable) termination of employment
Mr Horst Siegfied Jaksch
v
Bradken Resources Pty Ltd
(U2009/4501)
COMMISSIONER SPENCER | BRISBANE, 7 JUNE 2010 |
Termination of employment – jurisdictional – genuine operational reasons.
Introduction
[1] The Applicant (Mr Horst Jaksch) filed an Application for relief in relation to the termination of his employment by Bradken Resources in accordance with section 643(1) of the Workplace Relations Act 1996 (Cth) (the Act).
[2] An ex tempore decision was given in transcript at the conclusion of the hearing. Delays were experienced with the transcript and the edited decision is now provided in writing.
[3] The Respondent filed a motion to dismiss the application for want of jurisdiction, pursuant to section 645, on the basis that the termination of employment was for genuine operational reasons, in accordance with section 643(8) of the Act.
[4] Two conciliation conferences were held in this matter and the matter was not resolved. The Applicant was self-represented. The Respondent was represented by Ms Cecily Tucker of the Australian Industry Group. The Commission, as currently constituted, set directions for the filing of evidence and submissions for the genuine operational reasons jurisdictional issues. A series of extensions were sought in relation to the directions and granted by necessity. The hearing was convened in Brisbane on 12 May 2010, and the decision on transcript issued at that time.
[5] I confirmed in the decision that I had the prior opportunity to the hearing to consider the submissions and evidence of the parties, filed in accordance with the directions, and the further material provided at the hearing.
[6] Mr Warren, the manufacturing manager of Bradken, provided further evidence at the hearing and was cross-examined by the Applicant. Both the Applicant and the Respondent provided additional submissions at the hearing.
[7] Whilst not all of the evidence, submissions and materials are referred to in this decision, all of such have been considered in the determination of this matter.
Background
[8] The Applicant's employment was terminated by the Respondent on 27 May 2009. He lodged an application on 10 June 2009 on the ground that the termination was unfair. The Applicant was employed, in summary terms, by the Respondent as a maintenance fitter and leading hand and commenced employment on 18 May 2004.
[9] The Respondent submitted that the Applicant was made redundant due to genuine operational reasons, as a result of the reduction in work. The Applicant contended that his termination of employment was not for genuine operational reasons, or for reasons that included genuine operational reasons. The Applicant submitted that the Respondent's decision to dismiss or make the Applicant redundant was based on a series of disagreements he had experienced with the Respondent and had recorded; and that he wished to have the opportunity to provide this particular evidence in relation to the unfair dismissal matter. He also indicated that the criteria utilised for his selection in terms of the redundancy was unfair.
Legislation
[10] In terms of the legislation, the following legislative provisions are relevant to the consideration of the jurisdictional matters. The Application was made pursuant to section 643(1)(a) and the motion to dismiss for want of jurisdiction on the basis of genuine operational reasons was made in accordance with sections 645 and 643(8), and a hearing was held on 12 May 2010 in line with section 649. The critical element is in relation to section 643(9). That is:
For the purposes of subsection (8) operational reasons are reasons of an economic, technological, structural or similar nature relating to the employer's undertaking, establishment, service or business, or to a part of the employer's undertaking, establishment, service or business.
Summary of Respondent’s submissions
[11] The Respondent submitted, in relation to the genuine operational reasons jurisdictional issue, that the Applicant's employment was terminated for genuine operational reasons or reasons that included these genuine operational reasons in accordance with section 643(9) of the Act. That is, the dismissal was as a result of economic reasons relating to the Respondent's business. The Respondent stated that the Applicant's application for relief in relation to the termination of his employment was jurisdictionally barred, pursuant to section 643(8). Accordingly, the Respondent sought the Commission to make an order dismissing the application, pursuant to section 649 of the Act.
[12] The Respondent submitted that the termination of the Applicant's employment was based on a reduction in the amount of work available at the operations and the financial impact on the business as a result of this reduction in work, and that, as a result, some other 70 employees had also been made redundant.
[13] Prior to the commencement of the hearing the Respondent produced (and provided to the Applicant) a selection criteria relating to how those employees who had been made redundant had been selected. Accordingly, the Applicant was allowed the opportunity to address these issues with the Respondent's witness. The evidence given on behalf of the Respondent outlined the factors relevant to the downturn in the amount of work and the resultant financial consequences experienced by the Respondent, which brought about the consideration of making the positions redundant.
[14] Mr Warren’s witness statement set out below explained how the redundancies came about.
“In common with many others manufacturing companies during 2008 and 2009 the Company was significantly affected by the global financial downturn. The Company’s levels of demand and production suffered across its whole business in Australia and costs had to be brought down in order to keep the business viable.
In addition to employing a number of strategies to accommodate the downturn, which I will address in more detail later herein, the Company found it necessary in 2009 to make a number of positions redundant not only at the Runcorn Plan but also at its other foundry at Ipswich.
Ultimately this meant a reduction not only in the number of production workers but also in administrative and office staff positions.
By in or about early January 2009 it had become apparent that the Company was experiencing difficulty both financially and in terms of the amount of work available for employees at the Runcorn plant. For example, our work on hand reduced from 76 heats (532 tonnes of cast metal) to 42 heats (294 tonnes of cast metal) per week. The significant reduction of heats had an adverse affect [sic] on the number of maintenance fitters required to maintain the plant in full operational order. (Running at these lower heats does not fatigue the operational equipment at the same rate so fewer maintenance personnel are needed. Also the available time to perform maintenance increases allowing maintenance employees more machinery access time.
This process was also implemented in accordance with terms of the Bradken Runcorn Plant Union Collective Agreement 2006 which included consultation with employee committees and union representatives over the period of time in 2009 during which the redundancies were effected..
On three (3) separate occasions throughout 2009 a total of seventy (70) employee positions at the Runcorn Plant were made redundant as follows:
…”
Summary of Applicant’s submissions
[15] Whilst this is not a full summary all of the Applicant’s submissions, I have indicated that I have considered all of those. The Applicant predominantly stated that the dismissal was not based on genuine operational reasons, or reasons that included operational reasons, although he conceded that other redundancies had occurred. He considered in particular that another employee was employed to fill his position, with fewer qualifications and a record of less adherence to safety requirements.
[16] The Applicant's evidence was that during his employment, and prior to his dismissal, he was repeatedly dealt with unfairly, and he had recorded such particular events. Predominantly the Applicant queried why he was selected in lieu of other employees; given that he held a number of certificates and qualifications that other employees did not hold, and why his selection was effected at all.
[17] He particularly relied on and explained that if this was an operational issue, that he should have had an advantage in terms of avoiding the selection for redundancy, given his qualifications, and given that he was previously appointed as a leading hand.
[18] He may well have had a valid argument in terms of the fairness of his selection for redundancy, if this was a relevant issue to be assessed in this jurisdictional matter. He particularly said his selection for redundancy was contrary to his selection as a leading hand and contrary to the operational requirements of the business.
Considerations
[19] The Respondent met the evidentiary onus in this jurisdictional matter. The evidence provided on behalf of the Respondent is preferred against the jurisdictional evidentiary and legislative tests. It was clear that the Applicant's dismissal was for reasons of an economic nature relating to the employer's undertaking, establishment, service or business.
[20] The evidence supported a reduction in the level of work, and the resulting financial effects of such on the business brought about a decision to make some 70 employees redundant, including the Applicant. The need for the reduction in the workforce is not contested by the Applicant. It is his selection and the fairness of such that is contested.
[21] It was noted on the record that I was involved in a dispute in relation to Bradken and the relevant Unions regarding the need for this significant number of redundancies across their operations, so I can verify the genuine need to take steps in relation to effecting these redundancies. The fairness of the selection process is not relevant to the determination of this jurisdictional issue and this was explained to the Applicant, as was stated in terms of the particular case authorities.
[22] The Respondent submitted that there was a genuine need, due to the global financial crisis and the reduction in orders, to reduce employment and that each of the employees were selected via a selection criteria. The reasons for the Applicant's selection for redundancy accord with the terms of a genuine operational reason as set out by the Full Bench in Carter v Village Cinemas Australia Pty Ltd. 1 In particular the Full Bench set out at paragraph 28:
“It need not be something that demands or brings about an obligation to terminate the employment of a particular employee. The termination of employment of the particular employee does not have to be an unavoidable consequence of the operational reason for the limitation in section 643(8) to operate. Consequently, whether the employer could have done something other than terminating the employee’s employment will generally be irrelevant in deciding whether the termination was for genuine operational reasons, or reasons that include genuine operational reasons.”
[23] I referred further to paragraph 35 of that decision:
“In our view, the expression genuine operational reasons should be given its natural meaning, taking into account the context in which the words are used. That context is, that if a termination of employment of a particular employee was for genuine operational reasons, or reasons that include genuine operational reasons, no application may be made to the Commission for relief in respect of such a termination. The operational reason must exist but we do not find it helpful to analyze the expression further or to determine whether the test is subjective, as Mr O’Grady contended, objective, as Mr Bromberg contended, or somewhere in between as Mr Ginnane contended.”
[24] The Full Bench authority in A Cruickshank v Priceline Pty Ltd 2 in relation to the genuine operational reasons confirms the conclusion in this matter that the Applicant’s termination of employment was for genuine operational reasons.
[25] This jurisdictional matter has a number of important elements as follows: the first is that an employee is prohibited from making an application for relief if the employment was terminated for reasons specified in section 643(9). I referred to the authority in Cruikshank that, as a matter of practicality, the true reasons for a termination of the employment will usually not be within the knowledge of the employee concerned. Except in a limited number of cases, it would be unrealistic to expect a dismissed employee to ascertain with certainty the reason or reasons motivating an employer in terminating employment and for that reason the operation of the prohibition will usually be a matter of controversy. The Act provides for the resolution of the controversy at an early stage of the proceedings. The use of the adjective "genuine" serves to indicate that the reasons advanced must be genuinely held and must be capable of withstanding reasonable scrutiny. It would not be sufficient that an employer has a sincere belief that a termination was for operational reasons unless it could be shown that the reasons were genuine. The third element of the provisions, which should be emphasised, is that where the exclusion operates it is a complete bar to the application. It follows that it is impermissible, in the course of examining whether the reasons for the termination are genuine operational ones, to inquire whether the termination was harsh, unjust or unreasonable. The two inquiries must be kept separate.
Conclusion
[26] Whilst I have allowed some latitude of the Applicant, as the Respondent introduced material as to the selection criteria, it must be confirmed that the issues of the selection criteria relate to the fairness of the selection and are not relevant to the jurisdictional issue in question.
[27] There was conflicting evidence as to the selection of the Applicant. However, there was clear evidence of the decline in the nature of the Respondent's business, which impacted upon the business in financial terms and the amount of work available to be performed. It is these reasons that form the basis of the examination of the jurisdictional issues, and support the conclusion that the termination of the Applicant’s employment was for jurisdictional reasons.
[28] Accordingly, in all of the circumstances, based on the reasons provided, the application made pursuant to section 643(1)(a) is jurisdictionally barred, on the basis of genuine operational issues pursuant to section 643(9) and therefore the application is dismissed. I Order accordingly.
COMMISSIONER
Appearances:
Mr Horst Jaksch, for himself as the Applicant
Ms Cecily Tucker, Australian Industry Group for the Respondent
Hearing details:
Brisbane
2010
12 May
1 [2007] AIRCFB 35 (PR975821).
2 [2007] AIRCFB 513 (PR977445).
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