Mr Mika Setefano v ABC Natural Stone Creations Pty Ltd
[2010] FWA 5823
•2 AUGUST 2010
[2010] FWA 5823 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Mika Setefano
v
ABC Natural Stone Creations Pty Ltd
(U2010/6697)
COMMISSIONER FOGGO | MELBOURNE, 2 AUGUST 2010 |
Termination of employment - arbitration.
[1] This is an application lodged pursuant to s.394 of the Fair Work Act 2009 (the Act) by Mr Mika Setefano (the Applicant) seeking remedy for his alleged unfair dismissal from employment with ABC Natural Stone Creations Pty Ltd (the Respondent). The Applicant worked as a stonemason from approximately June 2005, first as a casual and then, from 2006, as a full-time employee, until his employment was terminated on 19 February 2010.
[2] The Employer’s Response filed by the Respondent claimed that the reason for the dismissal was genuine redundancy and as such the Applicant was excluded from making the claim. The matter was the subject of a conciliation conference on 26 March 2010 however the matter was not settled. Subsequently the matter proceeded to a Jurisdiction and Arbitration hearing before a member of the Tribunal as currently constituted.
[3] Mr N. Campbell of Counsel represented the Applicant. Ms Y. Liu, Accounts Manager, represented the Respondent.
[4] Mr Setefano, the Applicant and Ms Liu, for the Respondent, both gave evidence.
Settlement of Jurisdictional Objection
[5] Ms Liu gave evidence to support her contention that the Respondent was covered by the Small Business Code because it employed less than 15 equivalent full-time employees at the time of the Applicant’s termination of employment. 1
[6] The Applicant’s representative did not contest the eligibility of the Respondent to be covered by the Small Business Code based on the number of employees employed by the employer. The major contention of the Applicant is that the Applicant’s dismissal was not a genuine redundancy.
[7] Section 388 of the Act sets out the Small Business Unfair Dismissal Code but does not go to circumstances where the dismissal was a genuine redundancy. The meaning of genuine redundancy is set out in Section 389 of the Act which is in the following terms:
“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] The Respondent states that Mr Setefano’s dismissal was on the basis of a genuine redundancy. The Applicant’s case is that Mr Setefano was unfairly dismissed and that his dismissal was not a genuine redundancy. Section 385 of the Act regarding unfair dismissal states as follows:
“385 What is an unfair dismissal
A person has been unfairly dismissed if FWA is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; 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.”
[9] In establishing that the Respondent was a small business as provided for in the Act, Ms Liu gave evidence. She is the Accounts Manager for the Respondent but also quotes for jobs, prepares tenders for jobs and has responsibility for customer service and public relationships. In cross examination she denied that she did not have full knowledge of all the operations of the company. Her evidence was that she was married to one of the Director’s of the company and that she was involved in all decisions regarding the business.
[10] Her evidence and submissions explained the roles carried out by each of the employees of the company. She explained in detail the work carried out by the Applicant, the effect of the downturn over the past year on year returns between 2008/2009 and 2009/2010, the lack of contracts for work leading to a redundancy at the company and the reasons why Mr Setefano was the employee who was made redundant.
[11] The two Directors of the Respondent also worked full-time as stonemasons. The Director Mr Victor Duarte was a qualified stonemason and the floor manager. Mr Jeb Yixing Ji was also a Director and qualified stonemason. They were able to carry out the entire range of skills associated with the production of stone products and all installation work of the finished products.
[12] Mr Setefano was the third stonemason employed by the Respondent commencing as a casual worker in October 2005 and commencing full-time employment in February 2006. The Applicant could not do template work, did not do installations and could not do a bull nose edge. He used the smaller of the stone cutting machinery and primarily did shaping and polishing of stone edges with an angle grinder, cutting stone and finish. 2
[13] There were two other employees. One an assistant labourer 3 Mr Rosid Wahyudi who was learning to cut stone and the other an employee named as Ricardo and it was uncontroverted evidence that Mr Setefano was teaching him how to cut and polish stone.
[14] Ms Liu’s evidence was that the Applicant worked a 38 hour week at $25 an hour and overtime if it was available. Ms Liu stated that the company had been competing for contracts and had not been successful. She explained the business as providing stone products for higher quality products at the upper end of the market which was a highly competitive niche market. She stated that there was simply insufficient work for three stonemasons and that a redundancy had to be made.
[15] The two Directors of the company would obviously stay in preference to other employees since they were the owners of the company and Mr Setefano was the third stonemason and made redundant because there was insufficient work. It was also emphasized that the Applicant was unable to carry out the entire range of work associated with a stonemason’s job and it was more appropriate he be made redundant.
[16] Ms Liu further submitted that there may have been some labouring work available to supplement the Applicant’s role as a stonemason but that he declined to do any labouring work so the company had no alternative other than to make him redundant. The other two employees were able to structure new factory rooms, paint and do flooring for the new factory which the Applicant was not able to do. 4
[17] She stated that the other employees earned approximately $36,000 per annum and that she did not consider that it was acceptable to Mr Setefano to take a job requiring less skills than he had and at half the pay and she denied that he had asked for such a job. Ms Liu stated that it would not have been fair to offer such a position to Mr Setefano even if there was one available.
[18] Ms Liu stated that on 19 February 2010 the two Directors met with Mr Setefano and advised him that due to a downturn in the business of approximately 10% from 2007/2008 to 2008/2009 and the lack of new contracts and work, the company no longer had a full-time position for him. This was confirmed in writing following the meeting when the Applicant was requested by the Directors to see Ms Liu and she provided him a letter of termination 5 and a final pay advice with a cheque for $2,038.15.
[19] The final amount comprised leave entitlements, three weeks pay in lieu of notice but was deducted for taxation and a $450.00 loan repayment to the company. 6 At the time the Applicant refused to accept the cheque and advised he was seeking the advice of his union. He returned to collect the cheque on 2 March 2010.
[20] Ms Liu recounted that she received a phone call from Mr Wainwright from the Construction, Forestry, Mining and Energy Union (the Union) around 24 February 2010 at which time he stated that the company must pay eight weeks redundancy to Mr Setefano under the Joinery Award. Ms Liu stated she established that the company did not do any ‘commercial site job’ and Mr Wainwright agreed that in this circumstance the Agreement did not apply.
[21] Given the Applicant’s allegation that his dismissal was not on the basis of genuine redundancy and the submissions of the Respondent included a number of matters which related to performance, Ms Liu was cross examined on a number of these. She stated that the Applicant had previously had access to considerable overtime and she tendered wages and attendance sheets for the Applicant back to the end of 2008. 7 Ms Liu stated that the availability of overtime had reduced significantly during 2010 and in fact had been reducing during 2009 to the extent that Mr Setefano had stated that he was looking for a job which would pay better and have more overtime.
[22] Ms Liu stated that she appreciated that Mr Setefano wanted the overtime work and she knew he and another employee were working overtime at a different company in 2006 because he stated that he needed to maintain his level of earnings and ABC Stone was unable to provide sufficient overtime for the Applicant.
[23] Ms Liu stated that Mr Setefano was fully aware of the company’s position in mid to late 2009 because he told other employees he was looking for a job elsewhere.
[24] She stated that the company had not employed another full-time stonemason to replace Mr Setefano and had no intention of doing so at this time. She strongly denied that statements on behalf of the Applicant that there was sufficient work to be done and that another employee was working in Mr Setefano’s previous position. She stated the Directors, who earned less than Mr Setefano during 2008/2009 solely carried out stonemasonry and the other two employees carried out factory hand work and general labouring albeit that they were acquiring some skills associated with stonemasonry.
[25] The Respondent moved factory premises in April 2010 and Ms Liu gave evidence that it had not changed its workforce.
[26] There was considerable questioning of Ms Liu concerning a number of performance related issues regarding the Applicant which had arisen since 2006. Ms Liu answered questions regarding allegations against Mr Setefano’s overuse of the telephone, his lateness, verbal warnings he had been given, the number of times he had been on WorkCover, the number of days absent and the frequency with which the company was asked to pay him early and loan him money.
[27] Ms Liu gave details of each of these events. Many of the examples discussed relate to events which because of the effluxion of time and the nature of the alleged problem, have little if any bearing on this application. Ms Liu was adamant that the termination of Mr Setefano’s employment arose from a genuine lack of work.
[28] Mr Setefano provided a witness statement 8 and gave oral evidence. He was assisted with an interpreter from the Samoan language to the English language. The evidence shows that the Applicant did not cut stone with the large saw or install the finished stone product. Briefly summarised he used an angle grinder to refine the stone edges and to polish it to the finished product.9
[29] The Applicant stated that during his employment with the Respondent he had been on WorkCover due to injury. He conceded that he had always been paid during that time albeit that his pay was not correct and needed to be amended on several occasions although he later stated the pay had been incorrect once. Ms Liu agreed that working with stone was heavy work and unfortunately injuries did occur. The Applicant stated that on the last occasion he was injured he returned the appropriate form to Ms Liu but she had not lodged it with WorkCover.
[30] This issue was the subject of considerable discussion and intervention from the Commissioner to ascertain precisely what had occurred regarding WorkCover claims. 10 It appears that Mr Setefano mistook the WorkCover claim form with the Doctor’s Incapacity to Work form when he had hernia problems. He later confirmed that he had been paid during the absence associated with the hernia and the other employees were told that he had to take it easy for a while when he returned to work.
[31] The evidence from the Applicant regarding the amount of overtime he worked was contradictory and extremely uncertain. He alleged that he sometimes worked from 7.00 AM to 5.30 PM. He told Mr Campbell that he normally worked one to three hours of overtime every day of the week. 11 He also stated that at Christmas time he worked from 7.00 AM until 8.30 or 9.00 PM perhaps on the three Fridays leading to Christmas but could not substantiate whether this amount of overtime had occurred at Christmas on more than one occasion.
[32] The Applicant confirmed that in 2006 he worked elsewhere at a different factory and that he was employed by that factory when he was terminated from the Respondent. He also gave evidence regarding his resignation and his reinstatement after he asked Mr Duarte the Director for his job back. Questions were asked of the Applicant regarding his decision to spend a payment that he was given in error and his view that it was the Respondent’s or the banks problem not his.
[33] After the Christmas close-down the employees were due to commence for 2010 on 13 January. The Applicant did not attend for work but provided a Doctor’s certificate for the period between 13 and 23 January 2010. The Applicant could not remember or could not understand the questions by Ms Liu regarding a conversation between them around this time that there were not enough jobs and that was the reason overtime was being cut. Without discussing this exchange at length I believe that the Applicant’s responses were less than forthright and that he fully understood the questions being asked of him. 12
[34] On 15, 16 and 17 February 2010 the Applicant was absent from work to attend to family matters because his wife was in hospital. The Respondent rang him to advise him not to come to work on 18 February but instead to come to a meeting around noon on 19 February 2010.
[35] It was at this meeting attended by Mr Ji and Mr Duarte together with the Applicant that he was told that his position was being made redundant. The Applicant’s evidence of the meeting is relevant given the reasons which were discussed and the Applicant’s response. It relates the conversation at the meeting commenced by Mr Ji.
“MR CAMPBELL; What did he say?---I to come into the lunch room and we sit down and Mr Ji tried to explain to me what's going to happen and he say, "Mika, now me and Victor we decide you to finish, to go for retirement because not much - " - - -
THE COMMISSIONER: Go for?---Retirement, redundancy because not much job at the moment and not much overtime and I told them, "Why me? I'm the first one come here and help the company, and the last one come is the first one have to go." And they say no - and I asked them, "You were supposed to give me a warning before you terminate me." I kept asking them, "Please give me two weeks to still work here and I go to find a job. If I find a job then I leave here." And Mr Ji said, "No, there's no job, there's not enough job for you." And I asked him again, "Please give me two week, I have to - I pay a mortgage, I have a lot of things to pay." And he say, no, we've decided to let you go, you’re a professional stonemason, its easy for you (indistinct) and when you come to Australia you gave us job straight away and nothing else I can do and I tell Victor, one of the director, I tell him straight away, "You're the one that wanted me to work here.” 13
[36] The Applicant went to see Ms Liu who gave him a termination letter and a cheque which he did not take at that time but stated that he would speak to the union. For completion, the uncontroverted explanation of events after 19 February is that the Applicant attended ABC Stone during his lunch hour on 2 March 2010 and asked if he could have eight weeks redundancy pay. Ms Liu stated that as a small business she did not have to pay redundancy and referred to the Act. The Applicant said he was happy in his new place, took the cheque and left after everyone shook hands.
[37] Each of the instances when the Applicant was on WorkCover was considered during Mr Setefano’s evidence. It is alleged by the Applicant that he had suffered a work injury and lodged a WorkCover claim and he suspected that his boss had taken that into account when selecting him for redundancy. 14
[38] He further stated that there was no need to make anyone redundant because he had seen a template at the factory which was a sign that a job was about to commence. 15 The Applicant also gave evidence that the factory was in a period of expansion because one of the Directors had told him they had paid cash for the new factory. He alleged that the Director told him he had paid cash for the new factory so he did not understand why he was being made redundant.16
[39] Mr Campbell for the Applicant relied on the decision in Stannard v CSIRO 17 in so far as he stated that the Respondent had failed to call the relevant decision makers, Mr Duarte and Mr Ji. He also submitted that the Respondent had relied on generalized assertion regarding the redundancy and that there was insufficient evidence before the Tribunal to be satisfied that the job Mr Setefano performed was no longer required to be performed.
[40] Mr Campbell stated the Respondent had breached s.389(1) in that there was not a genuine redundancy because there had been no consultation regarding the redundancy. It was alleged that the relevant enterprise Agreement was the 1999-2000 Agreement which had been ignored by the Respondent. Clause 18 of that Agreement provided that while it was the employer’s prerogative to determine the order of employees for retrenchment, voluntary terminations should be encourages as a first step and seniority also considered.
[41] Further submissions were provided by Mr Campbell regarding the ability of the company to redeploy Mr Setefano and that as the “most experienced and skilled employee” 18 he was not the employee who should be made redundant. He was training two other employees who could had limited skills and experience and if there was to be a redundancy it should not have been the employee who could best perform the required duties.
[42] Mr Campbell correctly pointed out that the Small Business Dismissal Code did not deal with redundancy in small businesses and that the correct reference was to s.389 of the Act. He stated that since the termination of Mr Setefano’s employment was not a genuine redundancy that the relevant section of the Act was s.387 which contains the mandatory criteria the Tribunal must take into account when determining whether a dismissal was harsh, unjust or unreasonable.
[43] It was submitted that the Respondent did not have a valid reason for terminating the Applicant’s employment relating to his capacity or conduct, that it had not carried out the onus of establishing a valid reason for dismissal, that if there were misconduct or lack of performance issues they had not been dealt with at the time and no proof was given regarding any misconduct or lack of performance.
[44] It was submitted that the reasons for termination were that the Applicant had lodged WorkCover claims and/or that he had been absent from work to care for his wife during her illness. It was further submitted that the Applicant was not notified of the reasons for the termination, warned about his performance or given an opportunity to respond to any allegations regarding his performance and that if it was a redundancy the termination was harsh because the Respondent failed to pay severance pay.
[45] Mr Campbell stated that clause 7(b) of the 1999-2000 Agreement provides that the terms of the National Building and Constructions Industry Award 1990 as at 30 December 1996 are incorporated into the Agreement. 19 He stated that on his four years of service Mr Setefano should have been paid eight weeks severance pay. The Applicant sought the maximum amount of compensation available pursuant to s.392 of the Act.20
Conclusion
[46] On balance I find that the reason for the Applicant’s termination was on the basis of redundancy. The evidence of Mr Setefano himself regarding the termination meeting with the two Directors, Mr Ji and Mr Duarte, show that the only issue which arose regarding the reason for termination was insufficient work.
[47] It is clear that the two Directors and Ms Liu believed that there was insufficient work for three stonemasons. At the time of the termination of his employment there was some other work available relating to the factory shifting premises but Mr Setefano stated he would not do labouring work and that work was done by the other employees. Ms Liu attested to the failure of the company to win new contracts and the loss of work and on this basis the company’s operational requirements changed.
[48] I accept the evidence given by Ms Liu regarding the operations of the company and her complete understanding of the roles each employee undertook. Despite submissions that she was not a relevant decision maker, it was evident that Ms Liu knew in detail the operations of the company, the work each of the employees was capable of undertaking and how they performed that work and the financial position of the company. Her broad and detailed knowledge also stemmed it appears, from the fact that Ms Liu had more proficient English skills than the other Directors and, as evidenced by her preparation for this case, she undertook many responsibilities in the workplace.
[49] In this context I am satisfied that Ms Liu could appropriately represent the Respondent and provide relevant evidence and I do not draw any negative inference from the fact that neither of the two Directors attended the hearing or gave evidence.
[50] Mr Setefano gave varying answers regarding the precise nature of his work. While he indicated that he could do the finishing work of all the stone and all the types of edging, I do not find this to be the case. I accept the evidence of Ms Liu that Mr Setefano while skilled in many aspects of stonemasonry did not do bull nose edging and he was not at the same skill level as either of the two Directors of the company. He did not cut large slabs of stone or use the large saw to cut the edges of the slabs of stone.
[51] The case put regarding the redeployment of the Applicant is not accepted for several reasons. Mr Setefano was the highest paid employee at the factory but had less skills than the other two stonemasons’ who were also the working Directors of the company. He appears he was either unable to do the labouring work required in the move to the new factory, or did not want to, and with insufficient stone work orders there was simply insufficient work for him to perform. The statement by Ms Liu that she did not believe offering the Applicant a job which would provide half his usual pay was right or would be acceptable was substantiated by the evidence of the Applicant. I find these circumstances show that the dismissal was a genuine redundancy.
[52] The Applicant emphasized that he had been working for the Respondent for a longer period than the other employees who retained their jobs. It was not a matter of applying the principle of “last on first off” in order to reduce the number of employees at the company. There was insufficient work for three stonemasons. The Applicant was the only stonemason employed by the company apart from the two Directors who were stonemasons with the ability to do all the work associated with stonemasonry. Even if the Award clause relied upon by Mr Campbell was applied to this situation, the ‘last on first off’ principle is one consideration not a mandatory provision for selection in redundancy.
[53] Mr Setefano was on his own evidence unable to do all the tasks required by the company in the production and installation of stone products. 21 This fact together with the desire of the Applicant not to do labouring work provided adequate and valid reasons for the company to identify the Applicant as the employee to be made redundant. I find the dismissal a genuine redundancy.
[54] The amount of overtime worked by the Applicant was, on the basis of the evidence, an important issue to him. It was also argued that there was still overtime available and in that context it could not be argued that the position was redundant. The Applicant worked at the company who now employs him doing overtime in 2006because he wanted more overtime than the Respondent could give him at that time and it was known to the Respondent that this was the case.
[55] The evidence of Mr Setefano regarding the overtime he worked was extremely difficult to follow and no figures to back up the Applicant’s submissions regarding overtime were provided. The wages records incorporating the normal hours and overtime worked by the Applicant were tendered 22 and are of assistance in determining whether there was any diminution of overtime hours and to what extent overtime availability changed.
[56] Consideration of the data provided by the Respondent shows that the amount of overtime worked throughout 2008 was reasonably high particularly at the beginning of the year and approximately one half less overtime was worked in 2009 in comparison to 2008 levels. From July 2009 until the beginning of 2010 overtime availability fell albeit there was a two week period of considerable overtime in the Christmas period of 2009.
[57] The evidence provided by Ms Liu was direct and logical and to the extent that parts of her written submissions were well tested in cross examination I accept her version of events. I have not relied on the financial documentation provided by the Respondent. The information provided was not authenticated and did not bear any identification from a financial institution or any context for the figures which were tabled. I certainly do not say that they were incorrect but in the form they were presented and given the Applicant’s representative was not provided a copy of them, I have not relied upon them in reaching this decision.
[58] The allegation that the company dismissed the Applicant because he had made a WorkCover claim has not been proven. The evidence of Ms Liu stated that several employees at the factory had been the subject of WorkCover claims and they had all been properly dealt with to the extent that all the required documents had been lodged with WorkCover and correct payments had been made. She noted that the Respondent’s business was in an industry which had a high accident rate but stated the company had always supported employees who had been injured and she personally dealt with any WorkCover issues.
[59] The allegations that Mr Setefano had defrauded WorkCover, relate to claims in 2007 that while on WorkCover for an injury he assisted in the transfer of a large and heavy wardrobe into his home. The Applicant agreed that he did assist but that he only used one arm and he did not believe that he was in breach of the WorkCover claim.
[60] In relation to the mid 2009 hernia injury suffered by the Applicant, I am satisfied that the notification provided to the company was a Doctor’s Incapacity Form not a claim for WorkCover. There has been no satisfactory contest to the evidence of Ms Liu that she advised the other employees when the Applicant returned to work that he had restrictions on lifting and would require the assistance of the other employees. I also accept that the Applicant subsequently provided a medical certificate to Ms Liu indicating that he could return to full duties. 23
[61] There is one element of the redundancy which causes concern. Section 389(1)(b) of the Act provides that the employer should consult with the employee/s about the redundancy. I am unable to accept that the Applicant did not know that the business was not working at the levels it had previously. His overtime levels had decreased and he had stated during mid 2009 that he wanted to get a better paying job. He had on several occasions asked for advances on his wages and had been provided with a loan from the company. I also accept Ms Liu’s evidence that she had told him about the lack of work at the beginning of 2010.
[62] Mr Setefano was employed at the Respondent’s company for five years and knew about the company and the work. I accept that the Respondent did not consult with the Applicant until the termination meeting. I do not believe that the Applicant was not aware of the downturn in the work. However that is not the test. The Respondent should have been far more pro-active in warning the employees that there had been a loss or contracts and, as Ms Liu stated in evidence, that the global financial crisis has caused a 10% downturn in business.
[63] I am satisfied that the Respondent considered whether there was a combination of roles for the Applicant so that he did not need to be made redundant. It was not possible within the employer’s enterprise for the Applicant to be deployed as not only was there insufficient work but the work which was available was not work Mr Setefano could do or wanted to do so redeployment was not an option. The short period of unemployment for Mr Setefano is one satisfactory practical outcome of his redundancy and the three weeks payment by the Respondent to ensure he suffered no immediate loss of earnings.
[64] There is no doubt that Mr Duarte and Mr Ji did discuss redundancy with the Applicant because he argued that the principle of ‘last on first off’ should apply but the conversation was at the last minute and without any prior, or sufficient prior warning that redundancy may occur at the factory, the consultation process could be deemed to be less than satisfactory. On balance though and particularly given that redeployment was actively considered I do not find this flaw in the consultation makes the redundancy not a genuine redundancy and that the dismissal can be deemed an unfair dismissal pursuant to s.385 of the Act.
[65] The issues raised in this matter regarding the high number of phone calls the Applicant initiated and received at work, the fact that one of the Directors gave him a lift to work for two years but the Applicant was often late commencing work because he lingered over coffee, and his unreliability, are not matters directly associated with the dismissal of the Applicant due to genuine redundancy. They are all matters denied by the Applicant and go to performance issues not the reason for dismissal which I am satisfied was for a genuine redundancy.
[66] On the evidence and the submissions before the Tribunal I find that Mr Setefano’s dismissal was for reason of a genuine redundancy. An alternate submission for the Applicant was that if there was a redundancy that Mr Setefano was not paid redundancy pay. Several issues were raised regarding the relevant industrial instrument which applies between the union and the company. The most recent enterprise agreement was thought by the Respondent to be the relevant instrument but the Fair Work Australia records show that the Agreement was never certified or approved.
[67] This is an issue which the parties should attend to. There is insufficient information before the Tribunal at this time and further enquiry would be required if a determination was to be made. For the purposes of this case it does not become a relevant consideration because the Respondent has established that it is a small business covered by s.121 of the Act. The provisions of this section state that the redundancy provisions set out in s.119 of the Act do not apply when the employer is a small business. Section 121 specifically provides an exclusion for small business from an obligation to pay redundancy.
[68] I do not believe that the basic consultation which occurred in relation to Mr Setefano’s redundancy can diminish the finding that the dismissal was for a genuine redundancy. All the other requirements of s.389 of the Act have been satisfied. Redeployment was considered but unable to be accommodated with the lack of work at ABC Stone and there is no associated entity which could provide alternative employment. I am wholly satisfied that the employer no longer requires the Applicant’s job to be done or that any other employee is doing the job.
[69] Mr Campbell relied on a number of cases to support his submissions that Mr Setefano was unfairly dismissed rather than dismissed as a result of a genuine redundancy. The cases referred to are not in my view on point with the circumstances of this case and do not cause me to come to a different decision.
[70] After the dismissal from the respondent on 18 February 2010 the Applicant went across the road from the Respondent’s company to seek work at the other company he had previously worked at doing overtime in 2006. He commenced employment on 23 February 2010. It appears that he is being paid an hourly rate comparable to the $25 per hour which he received at ABC Stone.
[71] It was alleged that the Applicant had missed five days of work from his new job due to the extant application before the Tribunal. It was established by the Applicant that three of these days were for consultation with the union, one for the conciliation conference before the Tribunal and one day for the arbitration hearing. The three days for consultation is I believe an excessive claim for wages lost due to this case. Telephone consultation could have occurred or a time been arranged I am sure for a union official to meet Mr Setefano at his new workplace. There are no special circumstances in this application which would require three days of consultation with the union.
[72] The Applicant’s representative stated that an unregistered enterprise agreement was the relevant agreement and that the Applicant should have been paid eight weeks redundancy pay. For the reasons set out above and specifically arising from s.121 of the Act this is not the case as it has been established that the Respondent was a small business and the dismissal a genuine redundancy so relief is granted from redundancy payments.
[73] As far as I can ascertain the financial loss arising from Ms Setefano’s redundancy is minimal. He was re-employed within a period of four days from his redundancy. If his rate of pay is $2 per hour less than his wage at the Respondent then his loss is at most $80 a week but he has access to systematic overtime and more hours in total than that which was available at the end of his employment with the Respondent. The three weeks’ notice paid to him by the Respondent provides reasonable compensation for the period of re-employment.
[74] The Application by Mr Setefano pursuant to s.394 of the Act is not granted. I find that the dismissal of his employment on 19 February 2010 was for reason of genuine redundancy.
COMMISSIONER
Appearances:
N. Campbell, of Counsel, for the Applicant.
Y. Liu for the Respondent.
Hearing details:
2010.
Melbourne:
June 11.
1 Transcript PN 43-53.
2 see Transcript PN 303 - 370 for Applicant’s full evidence regarding his responsibilities.
3 Transcript PN 119.
4 Transcript PN 260.
5 Exhibit A2.
6 Ibid.
7 Exhibit R2.
8 Exhibit A3.
9 Transcript PN 303 - 374.
10 Transcript PN 727- 743.
11 Transcript PN 375 – 380.
12 Transcript PN 654 -663.
13 Transcript PN 457 - 458.
14 See Exhibit A3 point 11.
15 Transcript PN 383.
16 Transcript PN 373 & 718 – 723.
17 PR981830.
18 Exhibit A6, PN 20.
19 Exhibit A4, PN 27(h).
20 Calculations based on the decision on Sprigg Exhibit A7.
21 Transcript PN 664 - 692.
22 Exhibit R2.
23 Transcript PN 167 - 188 relevant to WorkCover issues.
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