Mr Jeffrey Flanders v Australian Demolition Industries Pty Ltd
[2012] FWA 10461
•12 DECEMBER 2012
[2012] FWA 10461 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Jeffrey Flanders
v
Australian Demolition Industries Pty Ltd
(U2012/11675)
DEPUTY PRESIDENT HARRISON | NEWCASTLE, 12 DECEMBER 2012 |
Application for unfair dismissal remedy - casual employee on workers compensation - application dismissed
[1] Mr Jeffrey Flanders (the Applicant) was employed by Australian Demolition Industries Pty Ltd (the Employer) from 24 November 2010 as a demolition labourer.
[2] On 15 December 2010 Mr Flanders was injured in a workplace accident which required immediate hospitalisation and surgery performed by Dr Petrellis.
[3] Mr Flanders was incapacitated for several months, returning to work on selected duties in late February 2011.
[4] Mr Flanders' employment was terminated with effect from 9 July 2012.
[5] This application for Unfair Dismissal Remedy was filed on 23 July 2012.
[6] The Employer lodged a Form F3 Response on 4 October 2012 and on 10 October 2012 a Form F4 Objection to Application for Unfair Dismissal Remedy.
[7] On 14 August 2012 there was an unsuccessful attempt at conciliation. Directions issued, firstly on 12 September to prepare the matter for hearing on 23 October, the applicant did not meet these directions; secondly on 27 September for hearing on 13 November 2012; then on 26 October 2012 for hearing in December 2012.
[8] Commissioner Bissett issued an order on 1 November 2012 determining the legal identity of the Employer and made directions in transcript.
[9] Emery Partners Solicitors lodged a Form F53 Notice of Representative Commencing to Act on behalf of the applicant on 3 August 2012 and then a Form F54 Notice of Representative Ceasing to Act on 4 September 2012.
[10] In the application for relief Mr Flanders asserts that the termination of his employment was due to the unwillingness of the Employer to find suitable duties for him and a concern by the Employer Mr Flanders may require further surgery.
[11] Section 396 of the Act requires a consideration of initial matters before merits.
[12] Section 396 states:
FWA must decide the following matters relating to an application for an order under Division 4 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;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.
[13] The Applicant lodged an Outline of Submissions by email on 7 October 2012 with 5 attachments (A to E).
[14] The Objection to Application for Unfair Dismissal Remedy submits that as a casual employee the applicant is prohibited from jurisdiction pursuant to s.384(2) of the Fair Work Act 2009 (the Act); and as a small business pursuant to s.383(b), which provides the minimum period of employment as one year.
[15] It is not contested that Mr Flanders was a casual employee.
[16] Mr Flanders asserts that his application is within jurisdiction as he had reasonable prospects of continuing employment as a casual employee.
[17] In its Response the Employer put that at the time of termination of Mr Flanders' employment it had only nine employees and was experiencing trading difficulties.
[18] The Employer put:
There were two reasons for termination on this occasion:
a) Due to economic slowdown, the employer has been unable to secure long term projects. This has created cashflow issues which has forced the employer to critically assess his operations including how many employees he is able to retain.
b) In making the assessment of which employees to retain, it was considered that the first employees to be terminated were those on casual employment. Upon further consideration it was felt that the unauthorised absences of the Applicant & the unreliability of his attendance forced the employer to consider him to be terminated.
[19] The Applicant refutes the assertion of unauthorised absences and the alleged unreliability putting that he has always made every reasonable attempt to attend work, asserting that the Employer has been uncooperative and disingenuous in the work made available.
[20] The matter was subject to teleconference proceedings before the Tribunal as presently constituted on 4 December 2012. Ms Stevens, the Employer’s representative, argued strenuously that the termination of employment was a distinct and separate matter from the Workers Compensation proceedings. Ms Stevens submitted that the sole reason for the termination of the employment was a downturn in business, which Mr Flanders had been made aware of on a number of occasions prior to the termination of his employment. In transcript of proceedings Ms Stevens put (at PN 128):
MS STEVENS: I haven’t supplied anything because it’s commercially-in-confidence, but certainly their trading figures will show that. There’s also a point that Mr Fenwick did quite often tell me, and this is during the last 12 to 18 months, that he sometimes had the men – in order to keep them employed, he found jobs for them, some of it has his place, but it was quite rudimentary work, but he simply have the work, he didn’t have the demolition contracts for them to do. He did not want to just terminate. He felt that these men needed the jobs, and he was trying to do everything he could at that point to keep them employed. Following a number of meetings with us as an accounting firm we had to kind of tell him that the reality of the situation was that if he continued to do that, then he would be out of business and he had to make a decision.
[21] Ms Stevens was afforded the opportunity to provide evidence to support this submission.
[22] This was not opposed by Ms Adams, Mr Flanders’ representative, who acknowledged that if it were demonstrated to the satisfaction of the Tribunal that the termination was a genuine redundancy, this would be accepted. Ms Adams sought an order to require the Employer to advise the Workers Compensation insurer accordingly.
[23] Such an order is not available. Mr Flanders is at liberty to convey this Decision to any relevant party.
[24] This further evidence was received from Ms Stevens on 7 December 2012 in the form of an affidavit sworn by her as adviser to the Employer. This affidavit deposes that the Employer had 16 employees at the end of July 2012, which reduced to 11 by the end of August 2012. Mr Flanders was one of 5 employees no longer engaged by the Employer.
[25] The number of employees remained at 11 in the ensuing months until November 2012 when it increased to 12.
[26] Over this time the total wages bill reduced from around $650,000 for the month of July 2012 to approximately $16,000 for the month of November 2012.
[27] Analysis of employee numbers and trading figures in the months preceding 9 July 2012, the date of termination of Mr Flanders’ employment, would have been more elucidating; however, the information provided, together with Ms Stevens’ submissions, is sufficient in the present circumstances to arrive at a comfortable satisfaction that the termination of employment was a genuine redundancy.
[28] In respect to s.396(a) of the Act Mr Flanders was dismissed on 9 July 2012 and the application was filed on 23 July 2012 putting it within the 14 day time limit prescribed by s.394(2).
[29] In respect to s.396(b) of the Act there is doubt Mr Flanders is prohibited from unfair dismissal as he was a casual employee with service in excess of 12 months with uncertain prospects of ongoing employment.
[30] In respect to s.396(c) of the Act as discussed below the termination of employment is not due to conduct. The Employer resiled from this ground in these proceedings, putting no argument or evidence to support it.
[31] There is uncertainty in respect to application of the Small Business Code. The Employer earlier submitted that it had 9 employees at the time Mr Flanders’ employment was terminated; however, Ms Stevens’ affidavit deposes that there were 16 employees at the end of July 2012. Mr Flanders was dismissed on 9 July 2012 at a time when, if there were 16 employees, the Small Business Code did not apply.
[32] In respect to s.396(d) the Employer has provided evidentiary material to support the conclusion that the termination of employment was a genuine redundancy arising from downturn in the industry and lack of work not confined to Mr Flanders.
[33] The matters are not contested and accordingly the matter does not require a hearing.
[34] It is appropriate to be critical of the manner in which the Employer terminated Mr Flanders’ employment.
[35] Mr Flanders was advised of the termination by a copy of correspondence addressed to a representative of the Workers Compensation insurer and a representative of the return to work co-ordinator which conveyed a mixed message covering the downturn in business and the conduct of Mr Flanders.
[36] Having given consideration to the degree to which the absence of dedicated human resources management specialists or expertise impacted on the procedures followed in effecting the dismissal, I am obliged to observe that this may be the cause of the clumsiness of the termination which has caused considerable hardship for Mr Flanders and engaged the Employer in these proceedings.
[37] I conclude that the termination of employment was a genuine redundancy and dismiss the application.
DEPUTY PRESIDENT
Appearances:
Ms S Adams (Applicant)
Ms N Stevens (Respondent)
Hearing details:
2012
Newcastle
4 December
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