[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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] FWC 4110
Decision Date: 24 AUGUST 2017

CaseChat Overview and Summary

Mr Jeff Alvisio has brought an application against Ventia Pty Ltd for a remedy regarding his unfair dismissal from employment. The dispute centres on the operation of a Waste Water Treatment Plant at a major construction site in the Northern Territory. The respondent, Ventia, reduced the number of plant operators from four to three. Alvisio contends that his dismissal was not a genuine redundancy due to his prolonged absence from work due to injury, the adequacy of the notice and consultation provided about the redundancy, and the fairness of his selection for redundancy.

The court was required to determine whether the dismissal was a genuine redundancy. This involved assessing whether the redundancy was based on valid operational reasons, the adequacy of the notice and consultation provided to Alvisio, and whether the selection process was fair. The court also needed to consider whether Alvisio's absence due to injury impacted the genuineness of the redundancy and whether further consultation would have changed the outcome. Additionally, the court needed to evaluate the fairness of Alvisio's selection for redundancy, given his absence from work and the limited consultation.

The court found that the dismissal was not a genuine redundancy. The reasons for the redundancy were valid, but the notice and consultation provided were inadequate. The court concluded that the consultation was not meaningful, and further consultation would not have changed the outcome. Alvisio did not seek redeployment until after his dismissal, and the consultation was limited. The court held that Alvisio's dismissal was unreasonable. The compensation was limited to the time required for reasonable consultation. The court ordered that Alvisio be compensated for the period necessary for proper consultation and that the dismissal be deemed unreasonable.

Orders