Mr Paul Angel v J M Kelly (Project Builders) Pty Ltd

[2015] FWC 1644

[2015] FWC 1644

FAIR WORK COMMISSION

DECISION

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

Mr Paul Angel
v
J M Kelly (Project Builders) Pty Ltd
(U2014/15066)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 16 MARCH 2015

Summary: unfair dismissal application - whether redundancy - failure to disclose pre-existing medical condition at induction safety checklist.

[1] This decision concerns an application by Mr Paul Angel under s.394 of the Fair Work Act 2009 (“the Act”) in relation to his dismissal from his role of site manager by J M Kelly (Project Builders) Pty Ltd (“the employer”).

[2] Mr Angel’s employment ceased on 30 October 2014 at the initiative of his employer, following a period sick leave. His employer contends that Mr Angel was terminated because of a shortage of work at the Toowoomba site on which Mr Angel had been performing the role of construction site manager. The site was said to have reached practical completion (with another long-standing employee overseeing the wind-down on an intermittent/as needed basis). Consequently, there was no longer any requirement for Mr Angel’s position.

[3] This was communicated to Mr Angel on 30 October 2014 in a conversation with Mr Lewkowicz, the South East Queensland Manager for the employer. Subsequently, Mr Angel received confirmatory correspondence from the employer which indicated that his position was no longer required. The correspondence read relevantly as follows:

We wish to confirm our conversation that unfortunately due to a shortage of work at this time, we have to terminate your employment.

In accordance with the relevant notice provisions, your last day of employment will be 30th October 2014.

[4] The Applicant received this letter at his home address on 31 October 2014.

[5] By way of further background, it appears that on or about 27 March 2014, Mr Angel and the employer entered into a contract of employment. That contract of employment read relevantly as follows:

Employment duties

This letter is to confirm your appointment to the position of site manager with JM Kelly (Project Builders) Pty Ltd. As site manager your duties include, but are not limited to, those set out in the position description. Within your skill set, qualifications and experience, may also be required to undertake other responsibilities and perform other tasks from time to time as the company may require to meet operating needs.

[...]

4. Your position will continue to be site based on the various projects appropriate at any time administered from the JM Kelly (Project Builders) Pty Ltd offices at unit D4/5 Grevillea Place, Brisbane Airport or 212 Richardson Road, North Rockhampton.

[6] The contract of employment itself does not stipulate that Mr Angel’s employment was for the life of the Toowoomba project only.

[7] Mr Angel contends that he fell ill on 7 October 2014 and was not able to resume work until 5 November 2014. Mr Angel appears to have had a seizure at work, owing to hypoglycaemia. Mr Lewkowicz claimed that whilst he was visiting Mr Angel at the hospital on the day of the seizure he was informed both by Mr Angel’s wife and his treating medical officer that Mr Angel suffered from a pre-existing medical condition which caused the seizure.

[8] On 30 October 2014 Mr Angel conveyed to his employer that following a final medical consultation he would be fit to resume work the following week. He was informed at that time, by Mr Lewkowicz, that his position was no longer required and he was terminated as a consequence.

[9] As mentioned above, Mr Lewkowicz contended that the project on which Mr Angel had been performing his duties had come to an end and that there were only some minor defects and omissions to be dealt with, which were being satisfactorily concluded by another employee (who attended the site intermittently). Mr Lewkowicz claimed that no new employee was engaged for the purposes of completing the project works and no employees were on site full time.

[10] In respect of his claim, Mr Angel argued that there was some six weeks of work left on the particular project, which did not end until late November 2014. He believes that had the employer returned him to work under its workplace rehabilitation policy – for which he had agitated – he would have been able to complete that further work (as well as other work on other sites).

[11] Mr Angel contended that in the course of the discussion of 30 October 2014, Mr Lewkowicz had indicated to him that he (Mr Lewkowicz) would be in touch with him shortly to explain the current work situation and the plans for the next few weeks for reason that there was a new project starting up which would likely involve further work.

[12] Mr Angel also claimed that his employer at that time indicated that it was happy with the performance of his job and “couldn’t fault my work.”

[13] Mr Angel also claimed that he had had subsequent discussions with the Chief Executive Officer for the employer - Mr Murphy - about his circumstances following his dismissal. Mr Murphy was said to have expressed surprise at Mr Angel’s sacking, and to have indicated that he was impressed by reports of Mr Angel’s work performance and suggested that alternate work may be available elsewhere. I will deal with that apparent exchange further below in the context of Mr Murphy’s evidence.

[14] Mr Lewkowicz contended that there was no other work available for Mr Angel to perform. Mr Lewkowicz’s oral evidence, buttressed by photographic evidence, was to the effect that work had concluded on the site and trades were being called in (by the other employee referred to earlier) intermittently to repair minor works. This employee (who organised the trades) was not employed for the purpose of the scope of works at the Toowoomba site, but was employed to work across all the employer’s sites on an as needed basis in a variety of roles.

[15] Mr Lewkowicz argued also that he gave no indication to Mr Angel that alternate work might be available (at the time or in the future). Consequently, Mr Angel’s position was no longer required and there was no alternative work to which to redeploy him. Mr Lewkowicz provided a statutory declaration - to which he further attested under oath - in which he claimed that:

“At no time did I tell him [Mr Angel] there would be further work for him in the near future, I did advise the Applicant that things may change in the future as we were tendering work within the region. At no time did he ask to return to work under the [employers] workplace rehabilitation policy.”

[16] Mr Lewkowicz also argued that at his induction Mr Angel was required to disclose any pre-existing ailments. As mentioned above, the ailment which was the apparent cause of Mr Angel’s seizure and absence from work was a pre-existing ailment, and Mr Angel had failed to inform his employer of his condition in this respect. The employer contended that this was evidence of a lack of faith and that it could no longer trust Mr Angel.

[17] I add at this juncture that it is true that Mr Angel completed and signed an Employee Safety Induction form on 31 March 2014, at the time of his engagement. That Safety Induction form asked the following question:

Do you have any illness, injury or latent health problems and/or condition that may be aggravated, exacerbated or caused by your work? (If yes, specify on attached sheet).

[18] To this question Mr Angel replied, “No”. Mr Angel claimed he replied in the negative as his condition was independent of his work environment (though he also gave evidence that his seizure resulted from not keeping his blood sugar at the correct levels because he was busy meeting site demands).

[19] Given the above discussion, the employer argued that the dismissal of Mr Angel was as a result of a “genuine redundancy.” The employer referred to this phrase without reference to the requirements of s.389 of the Act. But that said, the requirements of s.389 of the Act must be applied to the current circumstances to determine whether or not Mr Angel was an employee who was protected from unfair dismissal.

[20] Section 389 of the Act provides as follows:

(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.

[21] I now turn to apply the relevant facts to statutory context. If the statutory context is made out by the employer, then Mr Angel’s application under s.394 of the Act cannot proceed.

Was there a demonstrable operational circumstance that warranted Mr Angel’s position no longer being required?

[22] Mr Angel argued that there was about six weeks work left on the Toowoomba project and that he could have returned to work on or about 5 November 2014 to oversee the defect work. That is, his position was not redundant at the time at which it was communicated to him that his position was no longer required (on 30 October 2014).

[23] Mr Lewkowicz claimed that at 30 October 2014, the situation was that Mr Angel’s position was no longer required. This was because over the course of Mr Angel’s absence, the project had reached a practical completion stage and there were only minor defect works to complete. These minor works were being completed/coordinated by another employee of the employer (who had not been employed permanently on the site and was only required to attend the site intermittently). The defects and omissions remaining would require only a short period of time to execute (with various trades attending site as organised). Mr Angel’s position - as a full time site manager - was no longer required to give effect to those outstanding matters.

[24] The employer provided the complete defects schedule for the site. The range of defects were of a particularly minor kind. They included such activities as attaching a drainpipe, inserting a missing sink, cleaning windows and completing handrails etc. It was demonstrable on the employer’s materials and evidence that any work of substance had ceased, and there were no full time employees on site any longer.

[25] I think it is abundantly clear from the evidence, and particularly the evidence of Mr Lewkowicz - who impressed as witness because of his detailed appreciation of the state of the site and the minutiae of the defects schedule - that by 30 October 2014 the employer did not require the oversight of Mr Angel in his role as full time site manager. That is, Mr Angel’s position was no longer required at the Toowoomba site as the operational imperative of that role had ceased (with some residual functions being carried out by another employee).

[26] Mr Lewkowicz gave wider evidence that the employer’s business circumstances were stressed, its order book was shrinking, and that the action taken in respect of Mr Angel had to be framed in this context as well. The employer gave evidence of its profit and loss statement for the first half of the 2014-2015 financial year, which attested to Mr Lewkowicz’s claims. Further, in the three months following the dismissal of Mr Angel for reasons of redundancy or shortage of work (as the employer claimed it to be) the employer has had cause to dismiss 27 employees across Queensland. It was also claimed that the wider corporate group - beyond the building projects entity - has had cause to terminate approximately 40 employees.

[27] Overall, the evidence compels a finding that by the time Mr Angel was ready to resume work, the site had passed practical completion and his full time role of site supervisor was no longer required. These were operational circumstances that warranted his position being declared redundant.

Did the employer comply with any consultation requirement under any workplace instrument?

[28] Mr Angel’s employment was subject to a contract of employment. The contract of employment makes no reference to any term relating to consultation in the context of major change. For the purposes of s.389 of the Act, the employer was not obliged to consult with Mr Angel about major changes affecting his employment as his employment was not regulated by a modern award or enterprise agreement.

[29] Mr Lewkowicz also claimed that it was common in the building industry for employment to be premised on a project-by-project basis and Mr Angel would have well realised - given his work history - that his (Mr Angel’s) continuing work was contingent on the availability of another project on which to work.

Were there any other positions to which Mr Angel could have reasonably been redeployed?

[30] As indicated above, Mr Angel claimed that Mr Lewkowicz had indicated to him on 30 October 2014 that the existing project on which Mr Angel was performing the role of site manager had reached its practical completion stage but that there was the prospect of further work commencing shortly. Mr Lewkowicz claimed that this statement by Mr Angel was untrue. Mr Lewkowicz contended that it was explained to Mr Angel that the project on which he was employed had reached practical completion stage and that there was no other work for him at that site or at any other site. Mr Lewkowicz did concede that he had stated that “things may change in the future”, but this was not intended to convey the existence of an alternative position.

[31] It was claimed by Mr Angel that the employer had a position available as a site manager for the Brisbane office of the employer. But Mr Lewkowicz contends that this is untrue. Mr Lewkowicz contends that:

“At the time [Mr] Angel was made redundant we had only 4 projects, 2 of which were due to be completed pre-Christmas and all of which already had full-time site managers and all necessary staff to ensure the site was run properly.”

[32] Mr Angel also indicated through his evidence that there were other projects conducted by the employer at the time (such as in Jimboomba), to which he could have been redeployed. But the employer contended that the Jimboomba project came to a close in December 2014, and a specific employee who was not required on that site had not been redeployed (to Cairns, as Mr Angel also suggested) but had taken annual leave.

[33] Mr Angel also contended - as I indicated above - that Mr Murphy, the CEO of the employer, had expressed surprise to Mr Angel when he discovered that Mr Angel had not been offered work at one of the other projects which were operated by the employer. In response to this claim Mr Murphy provided a statutory declaration in which he indicated that he made no such comments to Mr Angel.

[34] Mr Murphy claimed instead that he was:

“[...] always fully aware of what work is ongoing and positions available and knew full well that [the] contracts were close to being completed and as a consequence there was no position available to Mr Angel.”

[35] Mr Murphy continued that:

“Mr Angel stated to me that he disputed that [the employer's] contracts were close to being completed. I advised Mr Angel that his belief was wrong.”

[36] Mr Murphy also claimed that Mr Angel’s claims were also untrue to the extent they contended that he [Mr Murphy] “believe[d] that I was still employed and on unpaid leave [...] and was surprised that [Mr Angel hadn't been offered] alternative work on other sites that [the employer] had worked on in other parts of the State.”

[37] Mr Murphy claimed further that he had never made any statements - contrary to Mr Angel’s claims - that he had expressed happiness with reports he had received regarding Mr Angel’s performance and that he (Mr Murphy) had been unaware that Mr Angel had been “sacked”.

[38] Mr Murphy contended that he did not mention to Mr Angel that he believed he was still employed or on unpaid leave. Mr Murphy claimed that he had discussed Mr Angel’s circumstances with Mr Lewkowicz and was well aware of Mr Angel’s termination.

[39] It appears to me on the evidence that Mr Lewkowicz frankly conveyed the state of the order book of the business and it did not provide an opportunity to utilise Mr Angel in another capacity or at another construction site following the wind down of the Toowoomba project. My conclusion in this regard is buttressed by the further evidence of the employer that following Mr Angel’s position being made redundant, the employer made a large number of other positions in its building projects team redundant in Queensland.

Conclusion

[40] The employer’s evidence is sufficient to make out its claim that Mr Angel’s employment came to an end for reasons of genuine redundancy for the purposes of s.389 of the Act.

[41] Because I have so found, Mr Angel is not an employee who is protected from unfair dismissal. His application under s.394 of the Act must therefore be dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr P. Angel, Applicant

Dr S. Watkins, of the Respondent

Hearing details:

Brisbane

2015

10 March

Printed by authority of the Commonwealth Government Printer

<Price code C, PR561830>