[2017] FWC 4110

The attached document replaces the document previously issued with the above code on 24 August 2017.

This document corrects a typographical error that had been made in paragraph 11 and on page 56.

Peter Willink

Associate to Deputy President Sams

5 October 2017

[2017] FWC 4110

FAIR WORK COMMISSION

DECISION

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

Mr Jeff Alvisio
v
Ventia Pty Ltd
(U2017/859)

DEPUTY PRESIDENT SAMS

SYDNEY, 24 AUGUST 2017

Application for an unfair dismissal remedy – Waste Water Treatment Plant on major construction site in Northern Territory – directive to reduce plant’s operation – four operators reduced to three – bona fide redundancy – whether applicant’s dismissal a genuine redundancy – applicant not at work for considerable period due to injury – notice of and consultation about redundancy – whether applicant’s selection fair – consultation not meaningful – further consultation would not have changed outcome – applicant did not seek redeployment until after dismissal – limited consultation – dismissal not a genuine redundancy – applicant’s dismissal unreasonable – compensation limited to time for reasonable consultation – orders to be made.

BACKGROUND

[1] Mr Jeff Alvisio was employed by Ventia Pty Ltd (‘Ventia’), a company contracted to Leighton Contractors at the Ichthys Onshore LNG Facilities Project (the ‘Project’) in Bladin Point, Darwin, Northern Territory. Mr Alvisio was one of four Waste Water Treatment Plant (‘WWTP’) Operators on Ventia’s OPS-1 contract on the Project and had been employed by Ventia since April 2013, firstly as a Casual Supervisor and shortly thereafter as Leading Hand Operator. He was employed under the terms of the Leighton Contractors Pty Ltd Ichthys Onshore Construction Greenfield Agreement (AE400617) (the ‘Agreement’) on a four by one week roster and was paid $51.87 per hour for a 58 hour, 6 day week (calculated at 36 hours ordinary time and 22 hours at overtime rates). In addition, he received a $928 a week Darwin Allowance, a weekly all purpose allowance of $53.73 to act as a Leading Hand and travel time of 8 hours at the hourly rate payable upon return to his rostered shifts.

[2] On 11 January 2017, Mr Alvisio received a letter terminating his employment on the grounds of redundancy. It reads:

Dear Jeffrey,

Re: Redundancy

I refer to our recent discussions on 6 January 2017, regarding the requirement to make a position within the Maintenance Team redundant.

As a result of a recent review by the Company of its business requirements, your current role of Waste Water Treatment Operator has been made redundant.

Since the commencement of the consultation process regarding this matter (6 January 2017), both you and the Company have considered and explored redeployment opportunities but unfortunately, a suitable alternate position has not been found.

This means that your employment will terminate on the grounds of redundancy, effective from 11 January 2017.

You will be paid in lieu of your notice of termination, and will also receive a payment of all outstanding accruals (including statutory leave) in accordance with the Leighton Contractor Ply Ltd lchthys Onshore Construction Greenfields Agreement.

I would like to remind you that any post-employment obligations in your contract of employment will survive the termination of employment. Accordingly, the Company asks that you observe these obligations after your employment has ended.

Additional Information and Support

Support is available for you and your family through our Employee Assistance Program, Assure Programs, a confidential, free service that enables you to discuss your personal, professional or financial situation with a skilled advisor or counsellor. You can contact them on XXX in Australia or XXX in New Zealand.

If you have any questions, please raise them directly with me or your People & Capability representative Bobbie Watson on XXX, Justine Williams on XXX or Rachel Hermiston on XXX.

Finally, I thank you for your contribution and service to the Company and wish you the very best for the future.

Yours sincerely

John McManus

Deputy Project Manager

Ventia Ply Ltd

[3] Ventia claimed Mr Alvisio’s termination was a genuine redundancy arising from direct changes to its operational requirements on the Project, which resulted in the four WWTP Operators being reduced to three. These reasons were:

1. The client did not require the same level of coverage (7 days per week), in that Sundays were no longer required to be manned and operated by the WWTP Operators.

2. The funding for the WWTP Operators was reduced by the Head Contractor, JKC by 25%, effective 1 January 2017. This was a reduction of $32,236 per month and aligned with the client’s reduced operational requirements for the specific function of waste water treatment.

3. As part of a restructure of the overall management and wages staff working within the WWTP section of the OPS-1 contract, the Laboratory Technician now takes on supervisory and direct management roles, overseeing the remaining three WWTP Operators. The new OPS-1 organisation chart, detailing the new structure, was subsequently approved by JKC.

[4] Ventia argued that cl 24 of the Agreement, dealing with consultation, had been complied with. The clause reads as follows:

24 Consultation

(a) The Employer shall advise, as soon as practical after making the decision, the employees’ Delegate(s) (if a Delegate(s) exists) and / or the relevant Union and the employees of:

(1) any major change to the scheduled work; or

(2) any action it intends to take likely to have a significant effect on employees.

(b) In discussing any significant change with its employees, the Employer will:

(1) explain the nature of the change and the reason(s) for it;

(2) discuss any impact this is likely to have on the employees;

(3) explain the steps it will take to minimise the impact of the decision on the employees;

(4) consider any issues/matters raised by the employees affected; and

(5) consider whether any issue/matter raised by the employees affects either its decision or the steps it will take to minimise the impact of the decision on the employees.

(6) After completing the step in sub clause 24(b)(5), if the Employer amends its significant change proposal, it will repeat the steps set out in sub clause 24(b) at least once more.

[5] During 2016, Ventia made around 54 employees redundant, including Mr Alvisio, due to the diminishing number of workers on the Project as the construction phase wound down.

[6] On 30 January 2017, Mr Alvisio, through his Union, the Australian Workers’ Union (the ‘Union’), filed an application, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’) seeking an unfair dismissal remedy; namely, reinstatement and compensation for lost income since his dismissal. It was submitted that Mr Alvisio’s termination was not a genuine redundancy in that:

his position as Supervisor was not redundant;

Ventia had not met its Agreement obligations to consult with him about his redundancy and attempts to redeploy him; and

he was unfairly selected for redundancy.

[7] Ventia relied on s 385(d) of the Act in that Mr Alvisio had not been unfairly dismissed because it had complied with s 389 of the Act as to the meaning of ‘genuine redundancy’. At this point, I set out below these two provisions.

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; 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.

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.

[8] Of course, if the Commission finds Mr Alvisio’s dismissal was not a case of genuine redundancy, considerations then arise as to whether his dismissal was ‘harsh, unjust or unreasonable’ (s 385(b)) within the meaning of s 387 of the Act and what remedy under s 392, if any, would follow a positive finding in that respect. For completeness, I note that Mr Alvisio was dismissed (s 385(a)) and the employer is not a small business which would trigger considerations under s 385(c) of the Act.

[9] Section 396 of the Act also requires the Commission to decide the following initial matters before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(d) whether the dismissal was a case of genuine redundancy.

[10] Specifically, I find as follows:

(a) Mr Alvisio was dismissed at the initiative of the employer on 11 January 2017;

(b) Mr Alvisio’s unfair dismissal application was lodged within the 21 day time limit set out at s 394(b) of the Act;

(d) an enterprise agreement applied to Ms Alvisio’s employment (see para [1] above) (s 382(3)(b)(ii).

[11] At the hearing of the application, Mr T Spence appeared for the Australian Workers’ Union and Mr Alvisio and Mr J Ford of Counsel with Mr A Ray of Herbert Smith Freehills,appeared for Ventia, with permission having been granted for Mr Ford to do so, pursuant to s 596 of the Act.

THE EVIDENCE

Relevant terms of the Agreement

[12] In addition to cl 24, a number of other terms of the Agreement were referred to during the course of the proceeding. These are set out hereunder.

Sub-clause 6(b)(4)

The employer is accountable to:

…

(4) Act at all times with fairness, honesty and in a trustworthy manner, responding to issues or concerns raised in a timely manner;

[13] Clause 7 deals with categories of employment. It reads:

7.1 Employment status

(a) Employees shall be engaged on a full time, part time or casual basis.

(b) A casual Employee may be engaged to work on an irregular or intermittent basis as determined by the Employer’s operational requirements for continuous periods not exceeding four (4) weeks. Casual Employees will be paid by the hour, at the appropriate Base Hourly Rate an all purpose loading of 25% of the Employee’s Base Hourly Rate in lieu of all applicable leave entitlements. A casual Employee may work the same work cycle/hours of work as a full-time employee. A casual employee is entitled to payment for a minimum of four (4) hours’ work per engagement.

[14] Clause 7.5 deals with redundancy entitlements. It reads:

7.5 Redundancy entitlements

(a) Each month, the Employer will pay $80.00 per week (pro-rata for part time) to each Employee, for each week of service which that Employee completed on the Project, into an Approved Worker Entitlement Fund such as:

(1) CIRTQ – for electrical and instrumentation Employees and Storepersons ($70.00 per week (initially) into CIRTQ and $10.00 per week (initially) into Jetco, the CIRTQ related benefits fund).

(2) ACIRT – for mechanical and fabrication Employees, non-destructive testing Employees and Storepersons.

(3) ACIRT or BERT – in respect of all classifications within the scope of the classification structure, except those classifications listed in sub-clauses 7.5 (a) (1) and (2), and appropriate Storepersons.

(b) The amount in clause 7.5 (a) will be increased to $82.00 on 1 May 2013, and then by $2.00 per year on 1 May, for the duration of the Agreement. The corresponding pro rata amount will be increased accordingly.

(d) The payments under this clause are inclusive of any statutory entitlements an Employee may have to severance or redundancy payments.

consultation is dealt with at cl 24.

[15] The following persons gave evidence in the proceeding:

Mr Francis Clark, Operations & Maintenance Supervisor, Ventia;

Ms Bobbie-Maree Watson, Senior People and Capabilities Advisor, Ventia;

Mr John Anthony McManus, Project Manager, Ventia; and

Mr Jeffrey Wayne Alvisio.

Mr Francis Clark

[16] Mr Clark is responsible for overseeing the work of the WWTP Operators. In responding to Mr Alvisio’s statement, Mr Clark said that:

no WWTP Operator is responsible for holding prestart meetings:

all WWTP Operators are responsible for checking the plant’s alarms;

Mr Alvisio was not responsible for allocating jobs to other Operators. Jobs are allocated by the Supervisor in prestart meetings. The Supervisor provides operators with planned preventative maintenance work sheets detailing daily, weekly and monthly tasks. These works are provided to the Supervisor by the Project Planner;

all Operators are required to participate in Job Hazard Analysis preparation and compilation of Safe Work Method Statements. These are overseen by Ventia’s Safety Advisers and Supervisors;

each Operator is responsible for completing their own documentation;

all Operators are required to check the volumes of chemical/s and advise the Supervisor of any which need to be reordered;

all Operators are required to alert a Supervisor if any equipment or materials are required, which are then processed through the Procurement Team;

Ventia’s Planner, in conjunction with Supervisors are responsible for organising any other trades persons required at the plant;

all WWTP Operators are required to attend WWTP meetings which include a Project Engineer, Environmental Advisor, Supervisor and Manager;

[17] It was Mr Clark’s evidence that Mr Alvisio was not required to perform, and did not perform, any duties additional to those performed by the other three Operators.

[18] In cross examination, Mr Clark conceded that his evidence that Mr Alvisio was not the Supervisor of the WWTP operators was contradicted by Ms Watson who had said:

‘John also made a decision to restructure the OPS-1 organisation so that the day to day management and supervision of the WWTP operators would be performed by a WWTP laboratory technician, rather than a Leading Hand.’

[19] Mr Clark was asked about the selection criteria for the redundancy and a spread sheet developed as part of the process obtained under a Notice to Produce. Mr Clark said he did not know who developed the selection criteria, but as far as he was aware, it was Companywide document used across the organisation.

[20] It was Mr Clark’s evidence that he had conducted all the scoring in the criteria, for all four Operators, apart from the attendance criterion. He said he relied on his experience of when Mr Alvisio started on the Project in December 2015, to when he left the site due to injury on 26 April 2016. He explained that Mr Alvisio had sustained a shoulder injury in December 2016 when rolling some heavy barrels. Mr Clark accepted that Mr Alvisio may not have been performing to his best due to fatigue and sleep loss as a result of the injury, during the four to five month period from sustaining the injury to when he left site. Mr Clark said that his assessment covered the entire period he had been associated with him on site, including by relying on weekly and monthly diary and visual notes, he took during the period. He keeps notes on all his employees.

[21] The total scores for each Operator were 26, 25, 24 and 22. In respect to the selection criteria, Mr Clark explained his understanding of (using) ‘initiative’ as ‘someone’s willingness or want to work with the team’. Mr Clark agreed he had scored Mr Alvisio lower than the other Operators on ‘initiative’ and ‘work commitment’. He could not say if this was a subjective judgement. Mr Clark said he had raised his concerns with Mr Alvisio, in one on one conversations, about his initiative and being part of a team. He conceded Mr Alvisio had not been formally warned about these matters.

[22] Mr Clark did not know why Mr Alvisio had been paid a Leading Hand allowance since the commencement of his employment, as he was not performing Leading Hand duties. He had no reason to question why the allowance was being paid, but he stressed that the tasks of a Leading Hand and a WWTP Operator are completely different. In re-examination, Mr Clark said he had not raised a concern with the Leading Hand allowance because he did not ‘believe in taking money out of people’s pockets’, notwithstanding Mr Alvisio was performing the same tasks as the other Operators.

Ms Bobbie Maree Watson

[23] Ms Watson described her duties and accountabilities as to:

(a) initiate and drive best practice HR initiatives through the Project;

(b) building sustaining business relationships with key stakeholders;

(c) provide advice, coaching and support to managers and leverage best practice leading edge tools to facilitate learning by managers of contemporary HR and ER/IR practices;

(d) manage and participate in recruitment activities as required to meet business needs;

(e) work with the Project Manager and employee relations staff if, and when required, to resolve industrial relations issues with support from corporate IR Manager; and

(f) manage and process employee termination (voluntary, performance management or redundancies).

[24] Ms Watson described Mr Alvisio’s employment conditions, which included a weekly all purpose ‘uplift’ in his wages of $53.73 ‘to act as a Leading Hand within the WWTP operators’. Despite this allowance, she claimed his role was the same as the other Operators.

[25] Ms Watson set out the background to Mr Alvisio’s redundancy. On 27 September 2016, Ventia received the following instruction from JKC:

‘Contractor requests Subcontractor begin 7 day a week coverage for the Temporary Waste Water Treatment Plant (TWWTP) with addition of one SOR 63 for (3) months from 1 October 2016 through 31 December 2016.

Please submit a COR for this additional work.

Estimated Not To Exceed is $96,918.’

[26] Prior to this directive, the WWTP was manned by two full time operators and a labour hire employee, as Mr Alvisio was absent due to a work injury. Ms Watson understood from Mr McManus that in January 2017, JKC had directed that the additional Sunday operational hours would not be extended and the funding was reduced accordingly by $32,236 per month, directly corresponding to the reduction of one Operator. Mr McManus made the decision to reduce the Operators from four to three. She believed he also made a decision to restructure the OPS-1 so that the day to day supervision of the WWTP would be performed by a WWTP Laboratory Technician, rather than a Leading Hand. It was Ms Watson’s evidence that JKC has the power to direct Ventia as to the allocation of resources, such as workforce numbers on the Project.

[27] Ms Watson said she commenced consultation with the four Operators on Friday 6 January 2017. Mr Alvisio was not on site that day. She and Mr Clark met with the day shift Operator at 3pm to read a pre-drafted communication about the redundancy. She had prepared this document the day before. It read:

This summary of key points provides all the information you need to effectively communicate with your teams about updates to the workforce numbers. This document is not for general distribution or for posting on noticeboards. It is a guide for your conversations only.

Context to communicate

The client, JKC, has provided instruction for an adjustment of the OPS-1 Workforce.

Messages to communicate

The current reductions will impact employees within the Maintenance Team specifically the Waste Water Treatment Plant Operators, as such we are commencing consultation with you today;

We have taken the approach to advise the WWTPO’s separately as we felt it best to afford you some privacy, prior to announcing to the wider OPS-1 group;

The reason for the reduction is due to the client’s request for OPS-1 to cease Sunday works, the current team is over resources by 1 Operator.

The process will include an objective assessment of specific criteria relating to all employees in the impacted job groups and is not based on how long individuals have been employed on the project;

Over the coming days, we will be conducting all the necessary planning to ensure the impact of any decisions are minimised on impacted employees as best we are able. Part of that planning includes Ventia, considering alternative employment opportunities within the Company, the broader Ichthys Onshore LNG Project;

Should employees wish to, you can express an interest in voluntary redundancy which will be considered; if you would like to do so, please speak to your Supervisor and/or Manager who will advise the process;

Please support your colleagues and avoid speculation, instead if you have any questions please see your direct Supervisor, P&C or a member of the management team.

Impacted employees will be notified as soon as reasonably possible; this will be conducted following consultation by your direct supervisor.

If any employees are struggling with this news please feel welcome to speak with your Supervisor, P&C or we encourage the use of our EAP program.

Independent and confidential counselling support is available to you by contacting the Employee Assistance Provider (EAP), Assure Programs on XX

Please note the potential for distraction, and advise your Supervisor should you feel this is unduly impacting you or a member of the team. Your Safety is our priority.

Actions

Consultation has commenced today Friday 6 January 2017

Update to be provided to the wider workforce early next week

Further information

Speak to your Supervisor or any member of the Management or P&C Team

Employee Assistance Program 1300 XXX

OzHelp

[28] Ms Watson said this Operator appeared visibly shocked. He filled out two redeployment forms (for site and other internal redeployment) and Ms Watson gave him advice about the Employee Assistance Program (EAP). Two other Operators, who were not on site, were phoned and the same information as above, was conveyed to them. Attempts at calling Mr Alvisio were unsuccessful. All three Operators not on site were emailed redeployment forms and at 4.44pm Ms Watson sent Mr Alvisio the following email:

‘Good afternoon,

I tried to contact you a number of times earlier today, and left you a voice message, to inform you of a workforce update, please contact myself for additional information.

We have been provided an instruction for an adjustment of the OPS-1 Workforce, specifically the Waste Water Treatment Plant Operators, as such we are commencing consultation with you today. The reason for the reduction is due to the client’s request for OPS-1 to cease Sunday works. After a thorough analysis was completed, we can confirm with the loss of Sunday works, the current team is over resources by 1 Operator.

To allow us to explore all potential options regarding re-deployment we are asking that you complete a re-deployment expression of interest form. This is an opportunity for you to indicate your preferences for redeployment including, employment elsewhere in Ventia or with another contractor for the Ichthys Onshore LNG Project;

EAP Counselling and Financial Support

Independent and confidential counselling support is available to you by contacting eh Employee Assistance Provider (EAP) Assure Programs on 1800 XXX XXX. The EAP provides confidential counselling and support, and in addition, up to four Financial Planning sessions to employees and their families.

Please support your colleagues and avoid speculation, instead if you have any questions please see your direct Supervisor, P&C or a member of your management team.

Thanks

Bobbie’

[29] Ms Watson said that at 4.15pm that day, she called the Union Organiser, Mr Darren Hale and advised him of the redundancy announcement and the commencement of consultation. Half an hour later, Mr Hale sent her an email as follows:

‘Hi Bobbie

Thanks for the call, can you please outline for me the process you will be following to find which employee will be made redundant from the waste water treatment plant. The criteria that you will be following and how you will be measuring the performance of employees against one another.

Could you please respond to this request by 12 noon tomorrow January 7^th 2017.

Regards

Damian’

Ms Watson acknowledged that she did not respond to this email, as she was advised by Corporate HR not to do so.

[30] Mr Alvisio phoned Ms Watson on Monday 9 January 2017. He apologised for being out of (mobile) range on Friday. She read through the communication (above) and asked him if he understood the situation. He agreed he did. Ms Watson claimed that when she asked him to complete the emailed redeployment paperwork, he stated that he was not interested in redeployment. She further advised him, that by not doing so, the Company would be unable to look for new job opportunities for him. Mr Alvisio did not respond. Ms Watson asked if he understood the process, if he had any questions, and told him he could contact her or his Supervisor for more information.

[31] Ms Watson phoned Mr Alvisio at noon on 11 January 2017 to advise him that he had been selected for redundancy. When he asked why he was selected, Ms Watson said it was based on a number of criteria – cooperation/work commitment, conduct, attendance and suitability. All four employees had received the same attendance score, notwithstanding Mr Alvisio had not been at work for some time due to injury. Mr Alvisio did not respond and merely asked how he could retrieve his personal effects from site. He insisted that no one touch his property and he would arrange for another employee to collect it. Ms Watson asked him if he had looked at the redeployment paperwork and he responded ‘What’s the point?’ Ms Watson advised him he would be paid his outstanding entitlements and paid in lieu of notice. She emailed paperwork to that effect later that day.

[32] Ms Watson said that two available labouring roles in OPS-1 were deemed unsuitable for WWTP Operators. More information was required from Mr Alvisio to explore redeployment opportunities for him within the broader Ventia Group. On 16 January 2017, Mr Alvisio emailed the completed redeployment forms which were sent to Ventia’s Talent Acquisition Team in Sydney. Ms Watson believed Mr Alvisio’s redeployment preferences were limited in that:

(a) he preferred to remain a Waste Water Operator or Water Operator;

(b) he would consider fly in fly out, but not relocation; and

Ms Watson added that a Melbourne based Project Engineer role on a sewage rehabilitation site was considered, but Mr Alvisio was not suitable as he was not an engineer.

[33] Ms Watson’s evidence was that Mr Alvisio was employed as an Operator and not a Leading Hand Operator. Nevertheless, she acknowledged he received a Leading Hand allowance.

[34] Ms Watson said that she advised Mr Alvisio that he would require a fitness for work certificate, before returning to work, which must certify him fit to return to work as a WWTP Operator, without restrictions. She did not tell him the doctor must be a Company nominated medical practitioner. Ms Watson attached the most recent medical certificate for Mr Alvisio which indicated he was ‘unfit for work’ and ‘totally disabled’, until the next review date, with prognosis ‘persisting symptoms suggest poor prognosis’.

[35] Ms Watson insisted that in a phone conversation with Mr Alvisio around 3 November 2016, she did not indicate to him that his job was in jeopardy. She denied telling Mr Alvisio that a report received from Dr McCartney on 11 November 2016 was ‘favourable’. She told him some questions were not answered by the Doctor, such as any limitations on physical tasks, such as shutting valves and climbing ladders. She denied mentioning she was seeking a second independent report in the phone call to Mr Alvisio on 9 January 2017 regarding the redundancy. Ms Watson rejected Mr Alvisio’s claim that he did most of the talking during this conversation. They both spoke for roughly equal time.

[36] Ms Watson said that the fourth employee engaged in October 2016 was a permanent full time employee. He was not a temporary employee, as no such category exists in the Agreement.

[37] Ms Watson said that Mr Alvisio received all his applicable entitlements upon termination, including redundancy from the Australian Construction Industry Redundancy Trust (ACIRT).

[38] In cross examination, Ms Watson agreed JKC could not direct it to breach its obligations under the Agreement, particularly cl 6 which requires it to ‘act at all times with fairness, honesty and in a trustworthy manner, responding to issues or concerns raised in a timely manner’.

[39] Ms Watson acknowledged she was not involved in the discussion which led to Mr Alvisio’s original contract of employment and which provided him with a Leading Hand allowance. She believed he was contracted as a Leading Hand, but only by title. She agreed that the Leading Hand functions were transferred to a Laboratory Technician, but that did not contradict what she had said about all the Operators performing the same tasks. She explained that she meant the ‘majority of tasks’, (were performed by all Operators). Ms Watson said there was no consultation with Mr Alvisio when the Leading Hand duties were reallocated to the Laboratory Technician, because he was no longer employed at the time.

[40] Ms Watson said that despite JKC’s instruction that the extra funding was only available for three months, it was a surprise to Ventia when it was not extended. Ms Watson did not have the expertise to comment on how the actual funding arrangements were calculated. She could not recall when she had the conversation with Mr McManus she described in para [25] above. Ms Watson explained that Ventia was surprised by the funding cut, because usually the Company receives three months rolling funding. There was an expectation the funding would continue. It was surprising that it was not extended, given the value the client saw in having the operation running on a Sunday. Ms Watson further explained that in September 2016 there were three operator positions - two direct Ventia employees and a labour hire position. A fourth position was added for the funded period 1 October 2016 to 31 December 2016. The labour hire employee was engaged because it was uncertain when Mr Alvisio would be returning to work and it was a quick engagement in a specialised role. As the person appointed was known to Ventia, it was a natural fit.

[41] Ms Watson said the communication document; see: para [26] above, was intended to be read by Supervisors to the employees to guide the conversation. She accepted that JKC did not direct Ventia to reduce the workforce. However, the funding cut was, in essence, the reason for it. Ms Watson explained that the usual process was to have two communications; one more detailed communication to the impacted work group and a shorter communication to the wider workforce advising of what was happening, so they can offer support to their affected colleagues. The same communication was delivered to the wider OPS-1 workforce on Saturday morning 7 January 2017.

[42] From Mr Alvisio’s phone records, Ms Watson confirmed that their conversation on 9 January 2017 lasted for eight minutes. She reiterated that they both spoke for around the same amount of time. Ms Watson believed this phone conversation met Ventia’s obligation to consult under the Agreement. Ms Watson explained that each conversation takes as long as is necessary. The time taken varies from case to case. From her experience, most employees confronted with redundancy, are in shock and they want to firstly process it for themselves or with their families. At no point, had she told Mr Alvisio during the conversation to stop talking, nor did she hang up the phone. She disagreed this conversation merely conveyed information, rather than being an actual discussion. It was a two way conversation. She did not say that someone would be made redundant in two days.

[43] Ms Watson said she knew Mr Alvisio was a Union member, but was unaware he was a Union Delegate. Ms Watson did not know why Corporate HR advised her not to respond to Mr Hale’s email of 9 November 2016. She said that despite her HR role, there is a chain of command she had to comply with. She was just following orders from Mr Ben Matthews, Head of HR.

[44] It was Ms Watson’s evidence that the redundancy selection criteria was developed by herself, the prior ENC manager and IR support staff. The scoring was compiled by the Supervisor (Mr McManus). She confirmed Mr Alvisio’s attendance record was the same as the others. This was because he had been on approved leave after a workplace injury, and this absence was not taken into account.

[45] As to the redundancy termination letter, Ms Watson said it was a template letter sent in these circumstances. The reference to a recent discussion on 6 June 2017 was an error – it was on 9 June 2017. Ms Watson agreed this letter used different language to the earlier communications to employees.

[46] It was Ms Watson’s understanding that the Agreement does not provide for temporary or fixed term employment contracts, although she conceded there is no express prohibition from doing so. Ms Watson was shown a Fair Work Ombudsman (the ‘FWO’) document which stated that a ‘fixed term contract employees are usually full time or part time’. She had no comment on the FWO opinion. Ms Watson said that the employee who replaced Mr Alvisio was told he was covering for an absent employee (Mr Alvisio). He was not told he was a permanent employee.

[47] Ms Watson was asked about a letter from Mr Alvisio’s doctor, Dr Barry Turner, dated 28 October 2016, which indicated he was fit to return to work on 14 November 2016. Ms Watson believed Mr Alvisio was actively seeing a specialist at the time. Mr Alvisio had received an earlier report from Dr McCartney, dated 12 October 2016. Ms Watson agreed that Ventia did not direct Mr Alvisio to seek another medical opinion after Dr Turner’s consultation. However, Ventia was concerned at the vagueness of Dr Turner’s medical certificate and the uncertainty as to Mr Alvisio’s future fitness date.

[48] In re-examination, Ms Watson explained that after receiving Dr Turner’s certificate, Ventia disputed Mr Alvisio’s fitness because the certificate was so vague. The Company needed to be satisfied that there would be a safe environment for Mr Alvisio to return to. So until a full assessment by a specialist could provide information with a position description of the tasks he was required to perform, he was not permitted to return to work. To ensure he was not disadvantaged, he was paid from 14 November 2016 onwards.

Mr John Anthony McManus

[49] Mr McManus set out the details of Ventia’s contract to JKC, which included the temporary nature of the contract during the construction of the Project’s onshore LNG facilities. As part of the OPS-1 contract, a temporary WWTP operates to treat waste water produced at the onshore construction sites. The amount of work at the WWTP is directly related to the level of construction activity. It will cease completely when construction is completed.

[50] Mr McManus said that the Head Contractor (JKC) provides funding to Ventia in order for it to provide the most efficient and effective use of labour and equipment. Funding increases or reduces, according to the on site labour requirements and directions of JKC. This generally accords to a schedule of rates which sets out an agreed price for different position categories (e.g. forklift driver, electricians etc.). Mr McManus deposed that in late September 2016, Ventia was requested to begin 7 day coverage of the WWTP to cope with a significant increase in worker numbers on the Project. This required the WWTP to operate on a Sunday, resulting in an increase in Operators of one (from three to four). From 1 October 2016, JKC provided the additional funding for the extra operator. Mr McManus expected that this would continue until mid-2017, given the increased throughput and the common practice of JKC to extend its requests for additional jobs and provide the necessary funding.

[51] It was Mr McManus’s evidence that on 10 December 2016, he spoke to JKC representative, Mr Rayford Bebee, who told him the expected funding would continue for at least nine months, so long as the site numbers were around 8,000. This meant the 7 day, extra Operator arrangement would continue. However, this was not to be. Shortly after, Mr McManus was told informally by one of the Project Engineers, Alan Mitchell, that site numbers had dropped and were expected to drop further (by around 800), meaning reduced volume of effluent through the WWTP. In early January 2017, Ventia was informed that funding for the fourth Operator would not be provided beyond 31 December 2016. It was then determined that three, and not four Operators were required.

[52] It was Mr McManus’s understanding that Ventia had not directly employed temporary or fixed term operational employees on the OPS-1 package. Employees can only be full time, part time or casual (although no casuals are employed). The four WWTP Operators had all been full time employees, with their length of employment dependent on operational requirements, performance and the various phases of the Project. In situations of temporary absences due to illness or leave, Ventia may, if required, utilise labour from on its lower tier contractors on site. The length of each employee’s engagement is based on the initial holistic funding provided by JKC. Ventia must then organise, structure and manage its workforce and resources accordingly.

[53] In cross examination, Mr McManus acknowledged that Mr Alvisio spent six weeks in Sydney during the construction of the WWTP in 2013 before it was transported to Darwin. However, Mr McManus said Mr Alvisio was not there to supervise or because of his skills or expertise. He was the only person on site at that time employed in waste water treatment. If others had been employed, they may well have been selected for this start up work over Mr Alvisio.

[54] Mr McManus could not recall being involved in a conversation with Mr Alvisio about his Leading Hand role in 2014. He noted that at that time Ventia was recruiting 300-400 people. Nevertheless, despite the build up and wind down of construction workers, the WWTP would generally remain in operation for the full construction phase. However, on this Project, Ventia does not control which plants operate and which plants do not.

[55] Mr McManus said that while there was nothing in writing about the extra funding for the additional Operator being continued for at least nine months, he had relied on what Mr Bebee had told him. It was Mr McManus’s evidence that Ventia did not commence consultation around this time, because the history and experience was that site instructions would continue beyond a given date. He was then told by Mr Mitchell that the funding would not be extended beyond 31 December 2016. He had no reason to doubt Mr Mitchell’s reasoning being the reduced effluent flow, with fewer workers on site. Mr McManus could not recall who from JKC had confirmed the funding would cease for a fourth Operator, because this was just one redundancy on a site of 8,500 workers. He then accepted that there was no instruction from JKC, to reduce the number of Operators from four to three.

[56] When shown cl 7 of the Agreement, Mr McManus conceded that there was no restriction on utilising temporary or fixed term labour. However, the Company had a practice of only employing full time permanent employees. JKC had not directed Ventia to do otherwise. He stated that it was Ventia’s preference to employ a permanent employee to a temporary position, although it was only funded for three months. That fourth person was engaged on 1 October 2016.

[57] Mr McManus agreed Mr Alvisio was certified as fit to return to work on 14 November 2016 and he had, in consultation with the management team, approved him being paid full Project rates from 14 November. Effectively, this meant the Company was paying for five operators from 14 November 2016 to 11 January 2017. Mr McManus said there was no extra funding to cover Mr Alvisio. However, all of the actual funding, which was ‘ring fenced’, ran out in January 2017.

[58] In clarification of questions from me, it was confirmed that from around July 2016 to 13 November 2016, Mr Alvisio was paid from an income protection scheme under the Agreement, and not workers’ compensation. The insurer, Allianz, had earlier rejected the workers’ compensation claim, as not a workplace injury and Mr Alvisio did not appeal that decision. From 14 November 2016, the Company continued to pay him full Project rates, notwithstanding he did not return to work, because Ventia was concerned as to his fitness to do so.

Mr Alvisio’s evidence

[59] Mr Alvisio claimed that despite being offered a role as Supervisor in August 2013, he was asked and accepted employment as Operator, Leading Hand. The position was offered by Mr McManus and Ms Maushumi Parvez and incorporated in his offer of employment at cl 4 (Leading Hand – 1-9 employees allowance $45.20 per week). Mr Alvisio said he supervised two other Operators, Mr Lee Hyde and Mr Robert Harmen. While there was no job description, he said the tasks he performed as Leading Hand included:

(a) running the ‘Pre-start at the commencement of the shift with the Operators;

(b) checking the WWTP for alarms;

(d) making sure the Operators had signed onto the Job Hazards Analysis and the Safe Work Method Statement;

(e) completing relevant paperwork for the other Operators;

(f) ordering chemicals for the WWTP;

(g) ordering any gear needed for the WWTP, which included, but was not limited to, ordering new pumps, wear rings for the pumps and any other material required for the WWTP;

(h) if there were any operational problems with the WWTP, it was his job to tell the Supervisor and then organise a trades person to fix the problem; and

(i) from the commencement of his role as Leading Hand, Mr Alvisio had attended and participated in all WWTP meetings with his Supervisor and the Principal Contractor, JKC.

[60] Mr Alvisio said he was directed by Mr McManus to leave the site on 26 April 2016, due to shoulder pain he was suffering as a consequence of a workplace injury he sustained on 18 December 2015. There was no dispute at the time that he had suffered an injury at work; see: Ms Bigwood’s email of 21 June 2016. From around 1 March 2016, Mr Alvisio was on restricted duties until Mr McManus said to him on 26 April 2016, that he ‘wasn’t happy’ with the paperwork related to his injury. Mr McManus believed that Mr Alvisio was fatigued from being unable to sleep properly, due to the pain of his injury. After consulting a specialist (Dr Cutbush) on 28 April 2016 who confirmed he had a ‘frozen shoulder’ (possibly due to a tear in adhesive capsulitis), Dr Cutbush advised that surgery would have the quickest recovery (six weeks) and without surgery, it could take two years to repair naturally. Dr Cutbush sent his advice to the workers’ compensation insurer, Allianz. While Mr Alvisio claimed he wished to return to work, Ventia told him not to return to work from 27 April to 14 November 2016. While Allianz ultimately rejected his injury as being ‘work related’ (on 3 June 2016), he received workers’ compensation payments until 12 July 2016 and income protection thereafter until 13 November 2016. When his workers’ compensation payments ceased, he requested a return to work, but Ventia refused, because if he resumed on restricted duties, he would not be covered by compensation.

[61] During the period of income protection, Mr Alvisio undertook rehabilitation, attended physiotherapist sessions and kept Ventia informed of his progress. He was later told he was making a good recovery. It was Mr Alvisio’s evidence that Ventia had advised him of their requirement to have a medical clearance from a Ventia nominated medical practitioner. As he believed he was very close to full recovery on 30 September 2016, he asked Ms Watson to make the necessary arrangements. He attended an appointment with Dr McCartney on 11 October 2016. Dr McCartney told him he would attempt to ‘fast track’ his report, because Mr Alvisio was keen to return to work as soon as possible. After about two weeks, Ms Watson informed him, she had not received the report. He told Ms Watson his shoulder had recovered and he had positive feedback from the rehabilitation provider and physiotherapist. Nevertheless, Ms Watson told him to get a clearance from his own doctor, Dr Turner. On 28 October 2016, Dr Turner advised he was fit to resume usual duties on 14 November 2016. Upon advising the income protection insurer he was cleared to return to work, these payments ceased on 13 November 2016.

[62] It was Mr Alvisio’s evidence that in a conversation he had with Ms Watson on 3 November 2016, she told him his job may be in jeopardy if Dr McCartney advised he was not fit to work. She clarified this in a follow up email as follows:

‘Hi Jeff

It was great to chat with you earlier, however I think you may have misunderstood what was discussed.

I have advised you various times (throughout the last 3-4 months) that Ventia would be seeking an independent medical assessment to ensure that we have clarity on your physical capacity to perform the inherent requirements of your role.

Today I advised that we needed to provide the Doctor with more detail with respect to your job duties. We have gone back to the assessing Doctor and provided greater clarity on the key/core physical tasks and duties undertaken and required to be performed in the role of WWTP. We expect to receive further information from the Doctor by mid-week next week. Once that is received, we will be in contact with you.

Thanks

Bobbie’

He responded as follows:

‘I Jeff Alvisio believe that I am fit to return to work on full time duties as stated in Dr Turners (sic) medical certificate. Bobbie in our conversation you mentioned that if the report from the independent doctor come back that I cannot returned (sic) at this stage I may not have a position available to me. I have concerns with my position as a WWP with Ventia.’

Ms Watson did not reply.

[63] On 11 November 2016, Ms Watson advised Mr Alvisio that Dr McCartney’s report was ‘favourable’, but Ventia required the Doctor to comment on specific duties, such as climbing ladders, bending over and opening and shutting valves. During the same conversation, he asked why Ventia had to make sure he was fit to return to work. He reminded Ms Watson that his income protection had ceased and he had a return to work clearance from his own GP. Ventia agreed to continue paying him in accordance with his usual roster, until he received a full clearance from Dr McCartney. He was paid from 14 November 2016 to his dismissal on 11 January 2017. Mr Alvisio claimed he had never been provided with either of the two reports prepared by Dr McCartney.

[64] Mr Alvisio said he missed a mobile call from Ms Watson on Friday 6 January 2017 and retrieved a voicemail asking him to call her back. Later that day, he received the email advising of the JKC instruction for an adjustment of OPS-1 Workforce; see para [27] above. In documents tendered by Mr Spence, it was disclosed that Mr Alvisio was in Weipa from 22 December 2016 to 8 January 2017.

[65] On Monday 9 January 2017, Mr Alvisio returned Ms Watson’s call (it lasted eight minutes as disclosed by the phone records). She told him of the JKC instruction and that he would be advised of any outcome. When he queried why he was not at work, Ms Watson said she was waiting for a report from an independent physiotherapist as to the duties he could perform. This was the first time he had heard of this requirement. Mr Alvisio’s evidence was that he did the majority of the talking in this conversation. Ms Watson did not:

(a) explain the steps taken by Ventia to minimise the impact of the decision on him;

(b) advise what criteria would be used to determine who would be made redundant; and

[66] Mr Alvisio denied he understood the process. Ms Watson just advised him of what was going to happen. He denied telling her he was not interested in redeployment. His letter of termination said that he had discussed redeployment (see: para [2] above).

[67] Mr Alvisio said he was advised by his Supervisor, Mr Clark by phone, that he was to be made redundant, and although the scores of all the Operators were close, the other three operators scored higher than he did. This was despite one of these Operators having been employed as a temporary addition to WWTP. He added that during the period he was not permitted to return to site, his position was performed by a labour hire employee. In addition, he had never been told that the restructure would involve a Leading Hand no longer being required.

[68] In cross examination, Mr Alvisio agreed that Ms Watson had spoken to his Union Organiser, Mr Damian Hale on 6 January 2017 about the proposed redundancy. Mr Hale had asked her how the employee to be made redundant, would be selected. Mr Alvisio agreed he had contacted Mr Hale the same day after receiving Ms Watson’s email. Mr Alvisio spoke again to Mr Hale both before and after his conversation with Ms Watson on 9 January 2017. He agreed he had contact with his Union throughout the process.

[69] Mr Alvisio acknowledged that the email from Ms Watson on 6 January 2017:

informed him of JKC’s directive to reduce the Operators by one, because of no Sunday work;

asked him for redeployment preferences; and

advised him of EAP counselling, if requested.

[70] Mr Alvisio conceded that by looking for redeployment options and offering counselling, the Company was attempting to minimise the impact of redundancy on him.

[71] Mr Alvisio said while he understood these matters, his main concern was the seven selection criteria, about which he had no information. He claimed he did not ask Ms Watson any questions because, given he was the longest serving Operator, who had trained others and had managed the plant, he never thought he would be the one made redundant. He did ask why he was not at work, as he had a clearance from his GP. While he agreed the GP’s clearance was very brief, without any details, his GP knew him well and knew he could return to work. Mr Alvisio affirmed it was Ms Watson who had proposed he obtain a clearance from his GP.

[72] It was Mr Alvisio’s evidence, that after he spoke to Ms Watson on 9 January 2017, he was expecting her to get back to him and inform him what was going to happen before any redundancy was actually confirmed. He had not asked for any timeframes for doing so. He denied he was told length of service was not a consideration.

[73] Mr Alvisio claimed that the failure to consult under cl 24(b) of the Agreement was Ms Watson not advising him about the criteria to be applied for selection. While this was not a specific requirement under cl 24(b), he still believed the information he was given, was inadequate. Mr Alvisio was asked about each of the six matters that the employer must address under cl 24(b) of the Agreement. He denied the employer explained steps to minimise the impact (despite para [69] above). He acknowledged the matter he had raised was returning to work from injury. He accepted that the funding cut by JKC was out of Ventia’s control.

[74] As to his return to work, Mr Alvisio was shown Dr McCartney’s second report of 5 March 2017 (which he was only given on 3 May 2017). He agreed Dr McCartney’s opinion differed to that of Dr Turner. When Dr McCartney was asked ‘Do you believe that Mr Alvisio can perform all of the inherent physical requirements of the wastewater treatment operator role without restrictions?’, he replied ‘No, not without foreseeable and significant risk of shoulder aggravation’.

[75] Mr Alvisio acknowledged that since he had been so long off work, he was ‘pretty gung ho’ about coming back. He agreed Dr Cutbush had recommended surgery as the quickest means of recovery, yet he did not have the surgery and instead asked Mr Clark to come back to site (despite Dr Cutbush’s opinion). It was Dr Andrews who agreed with the diagnosis of Dr Cutbush, who said his injury was ‘idiopathic’, and not work related.

[76] Mr Alvisio accepted that Dr Andrews had noted that he too had advised him to have surgery. However, he did not have the surgery and instead contacted Ms Bigwood and told her he wanted to come back to work. He saw Dr McCartney on 11 October 2016, then his own GP, Dr Turner on 28 October. Mr Alvisio could not understand why Ventia would be cautious about allowing him to return to work, given the various Doctors’ reports. This was in light of both Dr Cutbush’s and Dr Andrews’ view that surgery should be considered (which he did not pursue). Mr Alvisio acknowledged he received $63,000 in termination payments and around $20,000 from ACIRT under the Agreement (cl 7.5).

[77] In re-examination, Mr Alvisio was asked about the three reports of Dr McCartney (12 October and 16 November 2016 and 5 March 2017) and a Job Task Analysis of Ms Kamari Clarke, dated 28 November 2016.

[78] In the 12 October 2016 Doctor’s report, recorded as follows:

‘Given his recent functional assessment, he would be capable of performing the tasks required for this role.

However, if the ambition is to minimise the risk of shoulder injury, it is recommended that he avoid heavy manual work above 60 degrees flexion or abduction.

Given the attached outline of the role of Water Treatment Operator, I would recommend that most tasks could be completed within the above restriction.

It would be prudent to assess the arm movements required to ‘move drums inside screw press room’ as this is likely to be a heavy task and may require an awkward shoulder reach.

The cleaning tasks, including hosing, should be assessed to see whether overhead work or significant shoulder abduction is required, in which case these tasks should be avoided.

The remaining tasks appear to be primarily within the acceptable limits of shoulder movement.’

[79] Mr Alvisio said the reference to ‘move drums…’ was in respect to how the original injury had occurred. At the time, he had actually come up with a suggestion to screw the press drums on a platform with wheels, to avoid physically rolling the drums.

[80] It was Mr Alvisio’s evidence that after the first appointment, he was not seen again by Dr McCartney, or any other doctor, other than his GP. Dr McCartney’s second report of 16 November 2016 records the following:

This fellow has recovered well from his right shoulder adhesive capsulitits.

This was to be expected as adhesive capsulitis is self-limiting and most individuals recover function and range of motion with time and conservative treatment within 1 to 2 years.

He is no longer incapacitated from the work by the adhesive capsulitis and requires no further treatment.

The recent functional assessment reveals he has the functional capacity to return to his full pre-morbid duties.

However, he has pre-existing underlying age-related degenerative shoulder pathology in both shoulders which impact on his fitness for duties.

Mr Alvisio claimed he was given no opportunity to demonstrate he was fully fit for the duties Dr McCartney reported on.

[81] Mr Alvisio said he did not know the purpose of Ventia then seeking a report from an Occupational Therapist, Ms Clarke. He was taken to various photographs in Ms Clarke’s report and asked to comment on the tasks identified in the photos. He denied performing some of the tasks and criticised the frequency identified of some others (e.g. check inlet screen, maybe once - not five times per day, removing scum once every one or two months - not every day, opening closing shipping containers 4 times per shift - not 30 to 40 times). Mr Alvisio said he had no involvement with Ms Clarke as to the requirements of the tasks she had assessed. He had not even been aware she was undertaking the exercise, until he received her report. He was not asked to see Dr McCartney again to be assessed against these, or any other extra duties.

[82] In further cross examination, while Mr Alvisio agreed he had not been on site for twelve months, sewage treatment plants, whether small or large, are much the same and numerous valves are not usually shut, unless for maintenance. He conceded he could not say, with any certainty, whether all the tasks identified in the Task Analyst report are all still required by the Company.

CONSIDERATION

[83] As the objector to Mr Alvisio’s unfair dismissal application, Ventia is required to satisfy the Commission that his termination of employment on 10 January 2017, was a genuine redundancy, as defined in s 389 of the Act; see para [7] above. Occasionally, a redundant employee will not contest the circumstances giving rise to his/her termination, as to the bona fides of their redundancy in the conventional sense; namely, ‘that 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’. In these cases, it may be accepted that the employer’s onus is satisfied as to s 389(1)(a). More common, however, are challenges to the consultation obligations on the employer and/or whether it would have been reasonable to redeploy the redundant employee/s to another position/s. However, in this case, the Union, on behalf of Mr Alvisio, rejected the bona fides of his dismissal on all of the criteria set out in s 389. It was argued that:

(a) the reduction of four WWTP Operators to three was not genuine, in that it was not necessary based on the operational needs of the Company;

(b) the selection of Mr Alvisio as the person to be made redundant was unfair;

(d) Mr Alvisio should have been reemployed by Ventia within its enterprise or an associated entity (although this factor does not seem to have been pressed in the Union’s final submissions).

[84] Before turning to the evidence as to the facts and circumstances of this case in the context of considering these criteria, I shall set out below the relevant authorities appropriate to each one.

Meaning of redundancy

Redeployment

[85] As mentioned earlier, s 389 of the Act expressly defines ‘genuine redundancy’; see: para [7] above. The Explanatory Memorandum to the Fair Work Bill 2008 further developed the meaning of ‘genuine redundancy’ as follows:

Clause 389 – Meaning of genuine redundancy

1546. This clause sets out what will and will not constitute a genuine redundancy. If a dismissal is a genuine redundancy it will not be an unfair dismissal.

1547. Paragraph 389(1)(a) provides that a person’s dismissal will be a case of genuine redundancy if his or her job was no longer required to be performed by anyone because of changes in the operational requirements of the employer’s enterprise. Enterprise is defined in clause 12 to mean a business, activity, project or undertaking.

1548. The following are possible examples of a change in the operational requirements of an enterprise:

a machine is now available to do the job performed by the employee;

the employer’s business is experiencing a downturn and therefore the employer only needs three people to do a particular task or duty instead of five; or

the employer is restructuring their business to improve efficiency and the tasks done by a particular employee are distributed between several other employees and therefore the person’s job no longer exists.

1549. It is intended that a dismissal will be a case of genuine redundancy even if the changes in the employer’s operational requirements relate only to a part of the employer’s enterprise, as this will still constitute a change to the employer’s enterprise.

1550. Paragraph 389(1)(b) provides that it will not be case of genuine redundancy if an employer does not comply with any relevant obligation in a modern award or enterprise agreement to consult about the redundancy. This does not impose an absolute obligation on an employer to consult about the redundancy but requires the employer to fulfil obligations under an award or agreement if the dismissal is to be considered a genuine redundancy.

1551. Subclause 389(2) provides that a dismissal is not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise, or within the enterprise of an associated entity of the employer (as defined in clause 12).

1552. There may be many reasons why it would not be reasonable for a person to be redeployed. For instance, the employer could be a small business employer where there is no opportunity for redeployment or there may be no positions available for which the employee has suitable qualifications or experience.

1553. Whether a dismissal is a genuine redundancy does not go to the process for selecting individual employees for redundancy. However, if the reason a person is selected for redundancy is one of the prohibited reasons covered by the general protections in Part 3-1 then the person will be able to bring an action under that Part in relation to the dismissal [my emphasis].

[86] It is trite to observe that the meaning of the term ‘redundancy’ may vary, depending on the particular industrial context, and/or the text of an applicable industrial instrument. In Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10, Gleeson CJ and McHugh J [12] held that:

‘In the industrial context, redundancy of position is not a concept of clearly defined and inflexible meaning.’

[87] A Full Bench of this Commission in Construction, Forestry, Mining and Energy Union and others v Spotless Facility Services Pty Ltd [2015] FWCFB 1162 said at para [66]:

‘[66] The meaning of the word ‘redundancy’ is not fixed and the term will take colour from its context. However, in any relevant context it is the abolition of a position which leads to that position being redundant. The cause of the abolition of the position – whether business restructure, technological advance, loss of contract/ordinary turnover or otherwise – is a separate matter, albeit one which may determine the entitlements of the redundant employee.’

[88] Further, in Hodgson v Amcor Ltd; Amcor Ltd & Ors v Barnes & Ors [2012] VSC 94, Vickery J (‘Hodgson v Amcor’), after summarising the various authorities, arrived at the following conclusions:

‘In essence, subject to any qualification or re-statement found in the relevant contract of employment or any applicable statute, the common law concept of “redundancy” comes down to the following propositions:

(a) A job becomes redundant when the job of the employee ceases to exist because the employer, for whatever reason, whether by reason of reorganisation, mechanization, change in demand or other reason, no longer desires to have it performed by anyone;

(b) This can occur either when the role no longer exists or the duties have so changed that for all practical purposes the original role no longer exists;

(c) However, redundancy is not limited to the circumstance where the employer, no longer desires to have the work previously performed by the terminated employee done by anyone;

(d) A redundancy may also arise upon the redistribution of job functions, where the duties performed by an employee are redistributed among other employees.In this case the employer still requires the duties to be performed, but the re-organisation may give rise to a redundancy. In this event, although the duties remain to be performed, “for all practical purposes the original role no longer exists” because the duties are divided and assigned amongst others. In such a case the question is whether any function or duty remains to be performed by the employee. A redundancy will occur if, after the reorganisation, the employee in question is left with no duties to discharge;and

(e) Redundancy will not arise where the termination of employment is carried out solely because of any personal act or default of the employee terminated or for any consideration peculiar to that employee [endnotes omitted, emphasis added].’

[89] In Ulan Coal Mines Limited v John Howarth and others [2010] FWAFB 3488 (‘Ulan Coal v Howarth’), a Full Bench of the Commission held at paras [19]-[20] that:

‘[19] In the present case, the Commissioner appears not to have drawn an appropriate distinction in his reasoning between the “jobs” of the mineworkers who were retrenched and the functions performed by those mineworkers or take proper account of the nature of the restructure at the mine which led to an overall reduction in the size of the non-trades mineworker workforce. The Company restructured its operations in various ways including by outsourcing certain specialised, ancillary and other work and increasing the proportion of trade-qualified mineworkers in underground development and outbye crews. As a result, it was identified that there were 14 non-trades mineworker positions which were surplus to the Company’s requirements. The mineworkers whose employment was to be terminated were determined according to the seniority principle as provided in the Agreement. This did not mean that the functions or duties previously performed by the retrenched mineworkers were no longer required to be performed. It also did not mean that the positions of some of these mineworkers (e.g. in underground crews) did not continue, although those positions might after the restructure be filled by more senior non-trades mineworkers transferred from other parts of the operations or by trade-qualified mineworkers. However fewer non-trades mineworker jobs were required overall at the mine as a result of the operational changes introduced and, for this reason, the jobs of the 14 mineworkers selected for retrenchment could be said to no longer exist.

[20] These circumstances readily fit within the ordinary meaning and customary usage of the expression in s.389(1)(a) of the Act where a job is no longer required to be performed by anyone because of changes in the operational requirements of the employer’s enterprise [my emphasis].’

[90] The Full Bench in Ulan Coal v Howarth, after considering relevant authority and the Explanatory Memorandum to the Fair Work Bill 2008, concluded that:

‘It is noted that the reference in the statutory expression is to a person’s “job” no longer being required to be performed. As Ryan J observed in Jones v Department of Energy and Minerals (1995) 60 IR 304 a job involves “a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employees’ organisation, to a particular employee” (at 308). His Honour in that case considered a set of circumstances where an employer might rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly-created positions. In these circumstances, it was said that (at 308):

What is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the re-organisation, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position becomes redundant… (at 308)

This does not mean that if any aspect of the employee’s duties is still to be performed by somebody, he or she cannot be redundant (see Dibb v Commissioner of Taxation (2004) FCR 388 at 404-405). The examples given in the Explanatory Memorandum illustrate circumstances where tasks and duties of a particular employee continue to be performed by other employees but nevertheless the “job” of that employee no longer exists [my emphasis].’

[91] In Dibb v Commissioner of Taxation (2004) 136 FCR 388; [2004] FCAFC 126 (‘Dibb’) referred to above, the Federal Court said at 404-405:

‘43. The difficulty in this case has been caused by the aphorism which appears in both paras 12 and 42 of TD 94/12 to the effect that the job, not the employee, becomes redundant. However s 27F speaks of the “bona fide redundancy of the taxpayer”. We consider that it is more accurate to say that an employee becomes redundant when his or her job (described by reference to the duties attached to it) is no longer to be performed by any employee of the employer, though this may not be the only circumstance where it could be said that the employee becomes redundant. Reallocation of duties within an organisation will often lead the employer to consider whether an employee, previously employed to perform specific functions assigned to a particular “job”, will be able to perform any available “job” existing after such reallocation. Even if the employee’s job, defined by reference to its duties, has disappeared, he or she may be able to perform some other available job to the satisfaction of the employer. In that case, no question of redundancy arises. It is only if the employer considers that there is no available job for which the employee is suited, and that he or she must therefore be dismissed, that the question of redundancy arises. If, in good faith, the employer:

● has reallocated duties;
● considers that the employee is not suitable to perform any available job, defined by reference to those reallocated duties, existing after the re-allocation; and
● for that reason, dismisses the employee,

then, for the purposes of s 27F, the employee is dismissed by reason of his or her bona fide redundancy. In the above discussion we have used the word “available” as meaning “vacant”, and the word “suitable” as meaning “within the employee’s capacity”.

44. In the present case, the employer redistributed the duties previously performed by its District Managers and at the same time, added further duties. The job, described by reference to its duties as previously performed by Mr Dibb, ceased to exist. The employer no longer wished to have that job performed by anybody. The work was to be differently distributed. The result was that there was no job for which his skills qualified him. He was “surplus to [AVCO’s] personnel needs”. We consider that the respondent was in error in concluding that Mr Dibb’s dismissal was not by reason of his bona fide redundancy. As a result, the respondent also erred in failing to address the matters prescribed by s 27F. These errors have inevitably deprived Mr Dibb of the benefit conferred by Subdiv AA upon a person receiving a bona fide redundancy payment as part of an ETP.’

[92] It would also seem obvious and entirely understandable that the Commonwealth Parliament considered the history of the meaning of redundancy as expressed in the early authorities, when it crafted the statutory meaning used in s 389 of the Act.

Employer’s obligation to consult

[93] In this case, Ventia’s obligation to consult an employee/s about their possible redundancy arises, not only from statutory command (s 389(1)(b)), but from the terms of the Agreement covering Mr Alvisio’s employment. These provisions are set out at para [4] above. It was also submitted by Mr Spence that the Ventia had not complied with the Agreement’s objectives, specifically cl 6(b)(4), which I set out in para [13] above.

[94] The meaning of the word ‘consult’, was considered by the Full Bench in Consultation Clause in Modern Awards [2013] FWCFB 10165 (‘Consultation Clause in Modern Awards’). At paras [30]-[33], the Full Bench said:

‘[30] The word ‘consult’ means more than the mere exchange of information. As Young J said in Dixon v Roy:

“The word ‘consult’ means more than one party telling another party what it is that he or she is going to do. The word involves at the very least the giving of information by one party, the response to that information by the other party, and the consideration by the first party of that response.” [citations omitted]

[31] The right to be consulted is a substantive right, it is not to be treated perfunctorily or as a mere formality. Inherent in the obligation to consult is the requirement to provide a genuine opportunity for the affected party to express a view about a proposed change in order to seek to persuade the decision maker to adopt a different course of action. As Logan J observed in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited (QR):

“... A key element of that content [of an obligation to consult] is that the party to be consulted be given notice of the subject upon which that party’s views are being sought before any final decision is made or course of action embarked upon. Another is that while the word always carries with it a consequential requirement for the affording of a meaningful opportunity to that party to present those views. What will constitute such an opportunity will vary according the nature and circumstances of the case. In other words, what will amount to “consultation” has about it an inherent flexibility. Finally, a right to be consulted, though a valuable right, is not a right of veto.

To elaborate further on the ordinary meaning and import of a requirement to “consult” may be to create an impression that it admits of difficulties of interpretation and understanding. It does not. Everything that it carries with it might be summed up in this way. There is a difference between saying to someone who may be affected by a proposed decision or course of action, even, perhaps, with detailed elaboration, “this is what is going to be done” and saying to that person “I’m thinking of doing this; what have you got to say about that ?”. Only in the latter case is there “consultation. ...”

[32] We respectfully adopt his Honour’s observations. Similar to the obligation to accord a person procedural fairness, the precise content of an obligation to consult will depend on the context. The extent and significance of a proposed change, in terms of its impact on the affected employees, will have a bearing on the extent of the opportunity to be provided. Hence a change of limited duration to meet unexpected circumstances may mean that the opportunity for affected employees to express their views may be more limited than would be the case in circumstances where the proposed change is significant and permanent. It is also relevant to note that while the right to be consulted is a substantive right, it does not confer a power of veto. Consultation does not amount to joint decision making.

[33] Some of the ordinary incidents of a requirement to consult are reflected in s.145A(2), that is:

● ‘to provide information about the change; and

● to provide an opportunity for affected employees to give their views about the impact of the change; and

● to consider any views about the impact of the change that are given by the employees [my emphasis].’

[95] In Maswan v Escada Textilvertrieb t/a ESCADA [2011] FWA 4239 (‘Maswan’), Watson VP held at para [39]:

‘[39] In my view a decision to dismiss on account of redundancy will only be harsh, unjust or unreasonable if the rationale for the decision is seriously undermined or if there is a serious error in the procedure such that renders the termination unfair in the circumstances. Here the decision appears open to the employer to make. The failure to consult is not a trivial matter. But it is clear that consultation was highly unlikely to have negated the operational reasons for the dismissal or lead to any other substantive change, I do not believe that the failure to consult prior to the date of termination rendered the dismissal unfair. Given the evidence in relation to the operational need to restructure, I am of the view that it is likely that Mr Maswan would have been dismissed in any event, even if timely consultation had occurred [my emphasis].’

[96] It hardly needs stating that the word ‘consultation’ is, arguably the most oft debated word in the industrial relations lexicon (perhaps, ‘reasonable’ being another). It has been the subject of considerable judicial and Commission exegesis. That said, it is important to note that despite the views of some uninformed litigants, consultation does not mean agreement. However, nor does it simply mean an exchange of information; nor is it a mere formality or triviality; see: Maswan above. Consultation must be meaningful, open, and transparent and involve a reasonable and realistic consideration of each other’s views.

Redeployment

[97] In Ulan Coal Mines Limited v Honeysett and others [2010] FWAFB 7578 the Full Bench set out the obligations on an employer in regard to redeployment under s 389(2)(b) of the Act. At para 27, 28 and 34 the Bench said:

[27] Secondly, it is implicit in the terms of s.389(2)(b) that it might be reasonable for an employee dismissed by one employer to be redeployed within the establishment of another employer which is an entity associated with the first employer. It follows that an employer cannot succeed in a submission that redeployment would not have been reasonable merely because it would have involved redeployment to an associated entity. Whether such redeployment would have been reasonable will depend on the circumstances. The degree of managerial integration between the different entities is likely to be a relevant consideration.

[28] Thirdly, the question posed by s.389(2), whether redeployment would have been reasonable, is to be applied at the time of the dismissal. If an employee dismissed for redundancy obtains employment within an associated entity of the employer some time after the termination, that fact may be relevant in deciding whether redeployment would have been reasonable. But it is not determinative. The question remains whether redeployment within the employer’s enterprise or the enterprise of an associated entity would have been reasonable at the time of dismissal. In answering that question a number of matters are capable of being relevant. They include the nature of any available position, the qualifications required to perform the job, the employee’s skills, qualifications and experience, the location of the job in relation to the employee’s residence and the remuneration which is offered.

[34] It may be appropriate to make some concluding remarks about the operation of s.389(2). It is an essential part of the concept of redeployment under s.389(2)(a) that a redundant employee be placed in another job in the employer’s enterprise as an alternative to termination of employment. Of course the job must be suitable, in the sense that the employee should have the skills and competence required to perform it to the required standard either immediately or with a reasonable period of retraining. Other considerations may be relevant such as the location of the job and the remuneration attaching to it. Where an employer decides that, rather than fill a vacancy by redeploying an employee into a suitable job in its own enterprise, it will advertise the vacancy and require the employee to compete with other applicants, it might subsequently be found that the resulting dismissal is not a case of genuine redundancy. This is because it would have been reasonable to redeploy the employee into the vacancy. In such a case the exception in s.385(d) would not apply and the dismissed employee would have the opportunity to have their application for a remedy heard. The outcome of that application would depend upon a number of other considerations.

[129] In reply, Mr Ford claimed the Union’s submissions oversimplified the consultation process undertaken with Mr Alvisio and his Union. Mr Alvisio did not return Ms Watson’s call for three days. Emails are a common means of communicating with employees and must form part of the consultation process. Mr Alvisio’s claim of being left with an impression of Ms Watson further contacting him, was contradicted by his own evidence that Ms Watson had said she would advise him of the outcome.

[130] Mr Ford rejected any suggestion Mr Alvisio was uncertain, or did not understand the decision, the reasons for it and the steps being taken to minimise the impact (redeployment and counselling). It was noted that Mr Alvisio had not requested a face to face discussion; and even if there had been, there was no suggestion as to how the situation might have changed.

Conclusions of the Commission

[131] It seems apparent that the factual matrix of the consultation process, including its timing, is not seriously in dispute. The essential difference between the parties is whether the consultation was meaningful and consistent with the provisions of cl 24 and s 389 of the Act. Ventia may be strictly correct that it had complied with each of the requirements of the consultation clause. True it is, that over a period from 6-11 January 2017, Ventia:

(a) as soon as practical, advised the employees and their Union of a major change to its scheduled work;

(b) advised the action it intended to take which would have a significant effect on employees;

(d) discussed any likely impact on employees;

(e) explained the steps it would take to minimise any (adverse) impact on the employees; and

(f) consider any issue/matter raised by employees about the decision and the steps taken to minimise the impact.

[132] However, in respect to the consultation with Mr Alvisio, I do not consider that consultation was meaningful, within the meaning of cl 24 of the Agreement and s 389(1)(b) of the Act. I make this finding for the following reasons.

[133] For Mr Alvisio, effective consultation did not really commence until 9 January 2017. The 7 and 8 January was a weekend. Mr Alvisio was advised of his dismissal on 11 January 2017. In my view, the 6 January 2017 cannot be taken into account despite Mr Alvisio receiving the email advising of the matters in cl 24(b) 1-3 on that date. In my opinion, this email was not the effective commencement date of any discussion - let alone meaningful consultation - until the phone conversation 9 January 2017. Consultation requires discussion and an exchange of views and opinions. To the extent Mr Alvisio’s consultation period was effectively only two days, I do not accept that sub clauses (4) and (5) of cl 24 of the Agreement could possibly have been complied with, even if he had time to consider his position and raise, and have considered any issue or questions he may have had. While I acknowledge that Mr Alvisio did not appear to have any questions, as he was more concerned about his return to work and he did not actually believe he would be the one selected for redundancy, that is not the point. Had he raised concerns/issues/questions, it was physically impossible for any meaningful or realistic consideration of anything he may have raised. Of course, Ventia would argue that had he done so and had his issues/matters been considered, the result would not have made any difference. That may be so, but again that is not the point.

[134] As to the selection process, I do not cavil with Ventia’s submission that the Commission cannot have regard to the selection process in a redundancy scenario, as explained in UES v Harvey where it was said at para [27]:

[27] The terms of s.389 of the FW Act suggest the process for selecting individual employees for redundancy is not relevant to whether a dismissal was a case of genuine redundancy. The relevant Explanatory Memorandum confirms as much. Setting aside jurisdictional pre-requisites and the matters in s.396(a) to (c), FWA only needs to consider s.387(a) concerning whether there was a valid reason for a person’s dismissal related to the person’s capacity or conduct if one or more of the criteria in s.389 of the FW Act, which sets out the meaning of genuine redundancy, have not been met. The criteria in s.389 which have not been met can be taken into account in FWA’s consideration as to whether the dismissal was harsh, unjust or unreasonable as part of s.387(h), being “any other matters that FWA considers relevant [endnotes omitted].

Of course, UES v Harvey makes clear that the fairness of a selection process might be a relevant matter as to the unfairness of the dismissal under s 387(h) ‘any other matters…’.

[135] While I am bound to follow the ratio in UES v Harvey,it would seem to me that, as a matter of best practice, employees who are selected for redundancy, based on a similar set of criteria as was evidenced here, are at least entitled to know the factors to be taken into account, and their own scores (not necessarily, the scores of anyone else). From my experience, in some circumstances, employees have a right to appeal their scores and argue the reasons why they scored as they did. However, I hasten to add that I am not suggesting that this should have occurred, or was appropriate, in this case.

[136] On the other hand, Mr Alvisio did little to give Ventia any encouragement or confidence that he was willing to positively engage in the process. For example:

(a) He contacted his Union Organiser, three times during the period. It may be presumed he and Mr Hale were considering what steps to take in respect to the matter;

(b) Perhaps understandably, Mr Alvisio was focussed on returning to work after a long period off due to injury, rather than discussing matters about a redundancy, which he mistakenly believed was never going to apply to him;

(c) Mr Alvisio did not complete the redeployment preference paperwork until, it was too late - as he had been dismissed five days earlier. Even so, his redeployment preferences were limited.

(d) Ms Watson believed Mr Alvisio understood the redundancy decision and the reasons for it. I accept that he did.

[137] I would add the following comments on the submissions. The Union contends that Mr Alvisio should not have been selected for redundancy because of his Leading Hand role. I do not consider this argument takes Mr Alvisio’s case very far. True it is that from the commencement of his permanent employment, Mr Alvisio was paid, and was continued to be paid, a Leading Hand allowance ($53.73 a week at the time of his dismissal). It is curious why Ventia continued to pay him the Leading Hand allowance, while at the same time claiming he did not perform any supervisory duties. This contradiction was not really satisfactorily explained (despite Mr McManus’s evidence that he did not want to take money off anyone). That said, I accept Ventia’s evidence that Mr Alvisio’s duties and responsibilities were no different, or very little different to the other WWTP Operators. In any event, at the same time as the loss of the fourth Operator position, it seems the supervision of the remaining operators was transferred to the WWTP Laboratory Technician (although this merely serves to demonstrate that Mr Alvisio may well have been a Leading Hand, if only by name).

[138] In addition, the Commission does not accept the principle of ‘last on - first off’ applied, as Mr Alvisio’s (being the longest serving Operator) redundancy was therefore contrary to that principle. Firstly, there was no Agreement provision requiring ‘last on - first off’. Secondly, the adoption of a selection process to objectively consider the person to be made redundant against a set of criteria, would be rendered irrelevant if ‘last on - first off’ overrode every other factor. And thirdly, the principle of ‘last on - first off’ is a discredited principle these days and rarely used as the sole criterion in contemporary redundancy situations. With the begrudging acceptance of most Unions, it does not make business or operational sense, to ignore other objective selection criteria, by relying exclusively on ‘last on - first off’ in redundancy circumstances.

[139] Much was made by Mr Alvisio of his shoulder injury and the conflicting medical assessments made by Dr Cutbush, Dr McCartney and his GP Dr Turner, about his full fitness or limited fitness to return to work. It was said that Mr Alvisio’s injury and his absence from the site for around 12 months, was a real factor in his selection for redundancy. In my view, there was no link between the decision to reduce the number of WWTP Operators and the fact that Mr Alvisio had an injury. Given that Mr Alvisio had been off site for 12 months and he could not be certain if the tasks, or their frequency, were the same as when he was on site and the understandable concern of management with the qualified Doctors’ opinions as to his full fitness for normal duties, I consider Ventia’s decision not to allow him back on site, was a practical and cautious approach to take and reasonable in all the circumstances. His absence was not taken into account in the selection criteria.

[140] In any event, in my judgement, the Doctors’ opinions may be relevant in the context of reinstatement or compensation, but are not relevant as to the bona fides of Mr Alvisio’s redundancy. The reliance on extensive medical and witness evidence of his injury and his alleged fitness to return to work, was misplaced. It tended to divert attention from the pertinent issues to be determined in a genuine redundancy unfair dismissal case, such as this one.

[141] After balancing the competing considerations referred to above, I am comfortably satisfied that consultation with Mr Alvisio was not meaningful. Accordingly, the onus on Ventia to comply with its consultation obligations under s 389(1)(b) of the Act has not been discharged.

Redeployment options

[142] As mentioned at para [83] above, the Union did not raise issues relevant to whether Ventia had complied with s 389(2) of the Act, in so far as whether it would have been reasonable to redeploy Mr Alvisio to a position within the employer’s enterprise or an associated entity. This is unsurprising, given that it was common ground that:

(a) In the email of 6 January 2017, Mr Alvisio was invited to put suggestions as to any redeployment options, he may be interested in;

(b) Mr Alvisio was requested to fill out a redeployment preference form, but declined to do so;

(c) It was not until five days after his dismissal that Mr Alvisio returned the completed redeployment paperwork. Despite Ventia being under no obligation to explore redeployment options well after Mr Alvisio’s dismissal, it did so nevertheless. These inquiries were unsuccessful.

(d) Mr Alvisio’s redeployment preferences were limited and restricted to a waste water operator, preferably in Brisbane, but he was prepared to look at similar positions in Queensland, New South Wales, South Australia and Western Australia.

[143] Given these circumstances, and the absence of any reliance of the requirements in s 389(2), it may be safely assumed the Union does not contest Ventia’s submission that:

(a) it had no suitable vacant position to which Mr Alvisio could be redeployed to;

(b) the very nature of a large construction site drawing to completion, makes it inevitable that suitable vacant positions are likely to be very limited, if at all; and

(c) Ventia had made 53 employees redundant in the last short period, in the context of the wind down phase of the Project.

[144] In light of the above matters, I find that Ventia met its redeployment obligations to Mr Alvisio under s 389(2) of the Act.

Was Mr Alvisio's dismissal unfair?

[145] As I have found that Ventia did not satisfy the consultation requirements in s 389(1) of the Act, it follows that his dismissal was unfair. The onus now shifts to the Union to satisfy the Commission that his dismissal was either ‘harsh, unjust or unreasonable’, within the meaning of s 387 of the Act. Section 387 reads as follows:

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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 the FWC considers relevant.

[146] The meaning of the expression ‘harsh, unjust and unreasonable’, in the context of a dismissal, was explained in the oft-quoted extract from Byrne & Frew v Australian Airlines (1995) 185 CLR 510 (‘Byrne v Frew’) where McHugh and Gummow JJ said:

‘It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.’

Submissions of the parties

[147] Mr Spence submitted that Mr Alvisio’s dismissal was ‘harsh, unjust and unreasonable’ and the respondent’s deficiencies in its dealing with Mr Alvisio, raised broader issues of fairness as required by cl 6(a) of the Agreement which reads:

‘(b) The Employer is accountable to:

…

(4) Act at all times with fairness, honesty and in a trustworthy manner, responding to issues or concerns raised in a timely manner;

[148] Mr Spence claimed that the brief phone conversation with Ms Watson on 9 January 2017 and the continued delays in Ventia allowing him to return to work, raise suspicions as to the motives of the respondent, or at the least placed Mr Alvisio at a disadvantage compared to the other Operators. Further, Mr Spence argued Ventia had breached its obligation to act at all times fairly and honestly, when it refused to provide Mr Alvisio with information related to his selection. While the selection process may not be relevant under s 389, it is certainly a factor under s 387(h) as to the fairness of his dismissal. It was emphasised that in the few months before he left site in April 2016 (during which he was assessed), he was not performing ‘at his best’, because he was injured.

[149] Mr Ford submitted that the only criteria in s 387 which may be relevant in this case was ss (h); see: Stewart and Maswan. In summarising the background to Mr Alvisio’s redundancy, Mr Ford claimed that there was no real evidence that the decision was flawed, or that there was a serious error in procedure. It was pointed out that in the cases cited above, if there was a failure to properly consult, it was not a failure likely to have altered the outcome of the redundancy. It might still not result in a finding of unfairness. Mr Ford rejected Mr Alvisio’s reliance on cl 6(b)(4). This was a non specific aspirational clause, which cannot override the specific consultation clause (cl 24).

Conclusions of the Commission

[150] The provisions of s 387 must be taken into account by the Commission when considering whether Mr Alvisio’s dismissal was unfair.

[151] Specifically, I make the following findings:

1. Mr Alvisio’s dismissal was not related to his capacity or conduct, but because of a bona fide redundancy. Therefore ss 387(a)(b)(c) and (e) do not apply.

2. There were no face to face meetings to discuss Mr Alvisio’s dismissal, so there could not be any unreasonable refusal by the employer to allow Mr Alvisio to have a support person present (s 387(d)). This is a neutral factor in this case, although I note the Union Organiser was aware of the redundancy and the selection of Mr Alvisio.

3. There were no submissions put by either party concerning the degree the decision to dismiss Mr Alvisio was influenced by the size of the employer’s enterprise or the absence of dedicated human resource management or expertise (ss 387(f) and (g)). These are neutral factors in this case.

[152] This leaves s 387(h) of the Act. For the reasons, which must be obvious from my consideration above, I find that Mr Alvisio’s dismissal on 11 January 2017 was unreasonable.

Appropriate remedy

Submissions of the parties

[153] While the Union had originally said Mr Alvisio sought compensation and not reinstatement, this changed to reinstatement in its final submissions. Mr Spence put no more than ‘The applicant seeks reinstatement.’ He did not elaborate as to why reinstatement should be ordered by the Commission. In the alternative, Mr Spence submitted that Mr Alvisio would have remained employed for the remainder of the contract between Ventia and JKC and that the medical evidence demonstrated he was fit to return to work. In the worst case scenario, he would at least be entitled to a minimum of two weeks compensation, being the time necessary to properly consult with him about about his redundancy; see: UES v Harvey atpara [53].

[154] Mr Ford submitted that:

(a) had additional consultation been afforded in conformity with the Agreement it would have had very little material effect on the circumstances of the dismissal, including its timing;

(b) the period of time that would have been required to conform to the consultation requirements, would not have given rise to a delay in the dismissal; and

(c) any further consultation was unlikely to have negated the operational reasons for the dismissal, or lead to any other substantive change.

[155] Mr Ford added that in adopting the principles in UES v Harvey, compensation would only be payable taking into account the time it would have taken for Ventia to comply with its consultation obligations - two weeks pay. In the alternative and based on Dr McCartney’s prognosis, Mr Alvisio may not have remained employed, including on restricted duties for more than seven weeks. In addition, it must be noted that he was paid a redundancy entitlement of around $80,000.

Conclusions of the Commission

[156] Section 390 of the Act deals with the appropriate remedy to be awarded by the Commission where a finding of unfairness has been made. It reads:

390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.

[157] Given my findings as to the bona fides of the decision to reduce the WWTP Operator numbers from four to three, and the general wind down phase of the Project, it seems to me that reinstatement of Mr Alvisio would be inappropriate. I turn then to compensatory relief and the requirements of s 392 which read:

392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.

[158] It seems to me that the approach adopted in UES v Harvey, Stewart v Amcor Excavations Pty Ltd [2014] FWC 988 and Maswan v ESCADA [2011 FWA 4239is the appropriate outcome in this case. In UES v Harvey at para [53] the Full Bench, by majority, said:

‘[53] We are of the view that the remuneration Mr Harvey would have received, or would have been likely to receive, if he had not been dismissed would have been another two weeks’ remuneration. Two weeks is the period it would have taken UES to comply with its obligations in the relevant modern award to consult with Mr Harvey about the redundancy that led to his dismissal. Two weeks’ remuneration for Mr Harvey was an amount of $1,365.38 gross plus 9% superannuation.’

[159] Pursuant to s 392(g), I have also taken into account that Mr Alvisio received around $80,000 in redundancy entitlements. Even if an assessment was made of the period of time he would have remained in employment (s 392(2)(c)), resulted in a conclusion of say, a further 12 months, these payments made to Mr Alvisio would need to be taken into account. This would almost certainly result in the compensation cap of 26 weeks pay being exceeded by the amount of redundancy pay paid to him. The consequence of which would be a nil order of compensation. However, in the recent Full Bench decision of Double N Equipment Hire Pty Ltd t/a A1 Distributions v Alan Humphries [2016] FWCFB 7206 (‘Double N Equipment Hire’) in which the requirements under s 392 of the Act were reinforced, the Commission said:

‘[17] The identification of this starting point amount “necessarily involves assessments as to future events that will often be problematic” . Once this first step has been undertaken, various adjustments are made in accordance with s.392 and the formula for matters including monies earned since dismissal, contingencies, any reduction on account of the employee’s misconduct and the application of the cap of six months’ pay. This approach is however subject to the overarching requirement to ensure that the level of compensation is in an amount that is considered appropriate having regard to all the circumstances of the case [footnotes omitted, my emphasis].’

See also: Nurcombe v Balaclava Pastoral Co Pty Ltd ATF O'Connor-Fifoot Family Trust [2016] FWC 7454.

[160] Relying on Double N Equipment Hire, I intend to order that Mr Alvisio be paid an amount equivalent to two weeks pay, plus 9.5% superannuation, as compensation for his unreasonable dismissal, on 11 January 2017. Further, I am satisfied that the command in s 381(2) of the Act, to ensure a ‘fair go all round’ is reflected by such an order. Given the various components of Mr Alvisio’s salary, the parties are directed to confer as to the actual amount which is to be ordered and advise the Commission within seven days. Liberty to apply is available in respect to any disagreement as to the quantum to be so ordered; otherwise orders as agreed will be made in due course.

DEPUTY PRESIDENT

Appearances:

Mr T Spence appeared for the Australian Workers’ Union and Mr Alvisio.

Mr J Ford of Counsel with Mr A Ray of Herbert Smith Freehills instructing.

Hearing details:

Brisbane.

2017.

May.

8 & 9.

Final written submissions:

For the applicant, 2 June 2017.

For the respondent, 9 June 2017

Printed by authority of the Commonwealth Government Printer

Mr Jeff Alvisio v Ventia Pty Ltd

[2017] FWC 4110

24 AUGUST 2017

DECISION