Mr Shaun Taylor v Tatiara Meat Company Pty Ltd
[2010] FWA 5150
•13 JULY 2010
[2010] FWA 5150 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Shaun Taylor
v
Tatiara Meat Company Pty Ltd
(U2010/6596)
COMMISSIONER STEEL | ADELAIDE, 13 JULY 2010 |
Termination of employment – Jurisdiction – Genuine redundancy.
Introduction
[1] This matter concerns an application under s 394 of the Fair Work Act 2009 (“the Act”) by Mr Shaun Taylor (“the applicant”) who alleges that the termination of his employment with Tatiara Meat Company Proprietary Limited (“the respondent”) was unfair with reference to the definition of unfair dismissal contained within s 385 of the Act.
[2] The application was the subject of a conciliation conference that was not successful in resolving the matter. The respondent has subsequently raised a jurisdictional objection based upon the applicant being the subject of a genuine redundancy. They assert an unfair dismissal has not occurred consistent with the definition in s 385 mentioned above.
[3] Following directions conferences with the parties, it was decided a hearing of this matter was the appropriate course of action. The hearing was conducted on 27 May 2010 in Mount Gambier. That hearing addressed primarily the jurisdictional matter, however the tribunal is satisfied both parties provided sufficient evidence and submissions in regard to the employment relationship and the circumstances of its termination and hence material as to merits was also provided for the tribunal’s consideration.
The legislation
[4] Section 385 of the Act provides that a person has been unfairly dismissed if Fair Work Australia is satisfied that the dismissal was not a case of genuine redundancy.
[5] Commissioner Smith in a recent decision of Manoor & Prasad v United Petroleum Pty Ltd 1 conveniently summarised the relevant law for the tribunal’s reference.
“The meaning of genuine redundancy is set out in s.389.
“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.”
Relevantly, the Explanatory Memorandum stated:
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.”
Evidence
[6] The respondent provided two witnesses, Mr Andy Marvin and Ms Ana Sharman. The tribunal found both to be informative and credible as to their version of events.
[7] Mr Taylor provided evidence on his own behalf. The tribunal found him a serious person, committed to his perceived grievance and capable of representing himself. His evidence indicates that he has been unwell which he asserts is a related consequence of his termination.
The relevant factual background
[8] The tribunal has had regard to all the evidence and submissions provided. Where a conflict in evidence or submissions has arisen, the tribunal has resolved the facts on evaluation of the evidence and the probability of the events in question.
[9] The respondent submits that the applicant’s dismissal was a case of genuine redundancy. The applicant submits it was not a genuine redundancy and asserts he suffered prejudice by the process of the dismissal.
[10] Mr Taylor worked for the respondent employer from 10 August 1992 and commenced as a production clerk. He received three months training in the form of a work-exposure to the various areas of the facility. Since 1995 he has been involved in the “costings” area. That is, compiling statistics and analysis of production for operational reporting and budget performance and control. He was earning approximately $65000 per annum. At various times he has had limited additional experience in areas such as load-out and payroll tasks. His last role was designated as Cost Controller.
[11] In October 2009 the applicant was aware the company was for sale and that the company Swift Australia Pty Ltd, (“Swift”) the now-owner of the respondent, was a likely potential purchaser. He provided on request various information for use in negotiations by his employer and was aware discussions on a sale were proceeding. He was further aware that such a purchase and takeover may result in changes to management and financial accounting procedures and may also include staff changes.
[12] The respondent was purchased by Swift on 19 February 2010. Swift had examined the detail and arrangements of the respondent company during a due-diligence phase prior to purchase. Swift had identified that Mr Taylor’s specialist role was likely to be eliminated after final takeover of the company, and as a result of an intended restructuring of staff. The tasks Mr Taylor was engaged in were completed on a group basis by the Swift Group at another location. 2 Formal takeover was to take place as of the close of business Friday 19 February 2010. This duly occurred.
[13] A meeting was arranged for 22 February 2010 of all relevant staff by the new owners of the respondent. In that meeting the applicant made some remarks in the form of a personal introduction to his new employer. The applicant submits his remarks were made in the context of him being under some work pressure. He submits they were intended to be jovial. However it is apparent they had they opposite effect and they would seem to have conveyed an element of rudeness, defensiveness, flippancy and negativity to his new employer and to other employees. 3
[14] This meeting was addressed by Mr John Berry, a director of Swift, whom the applicant asserts, told the meeting that there would be no job cuts and it was to be business as usual.
[15] The applicant met with Mr Marvin and Mr Iain Mars (CEO of Swift) on 23 February 2010 for individual discussions. The applicant and Mr Mars had a discussion including the issue of the applicant’s remarks of the previous day and on the applicant’s work in regard to production statistics. This conversation became rather heated. The applicant felt criticised and under pressure, that he was being tested and treated with contempt. He indicates he felt belittled by Mr Mars.
[16] In this heated discussion, held on the second day of takeover by the new employer, the nature of the conversation is contentious. However, the tribunal finds in consideration of all circumstances that the applicant, in reply to the direct question from a director of his employer, “do you want a job or not?”, stated in reply, “I’m not going to plead for a job, if I haven’t got a job I’ve got a farm so I’d probably go back to that”.
[17] In consequence of this second discussion the respondent gained a further impression the applicant was defensive, flippant and not motivated to working for them.
[18] The applicant felt offended by the discussion with Mr Mars but indicates he was positive about his working relationship with Mr Marvin. The applicant was however affected by this meeting and later became emotionally upset at work and left the facility to seek “medical counselling”. He returned to the facility some time later but left again for a medical appointment. He asserts he was prescribed various medications but did not take sick leave away from work. The applicant has admitted to a health issue that requires professional assistance and monitoring.
[19] The applicant attended work for the next two days and was involved in various discussions and meetings concerning the costing structure and production reporting. On Friday 26 February 2010 the applicant was at work and was also arranging various prospective medical appointments in the morning. He sent an email to Mr Marvin. The applicant asserted this email was a formal objection to his treatment in an interview with Mr Mars. However its contents go to the following and the tribunal has selectively quoted from the email:
“Sometimes you need to be a bit ‘theatrical’ to express just how hopeless a situation is and we’re in one of those situations right now. Previously my comments and analysis were highly valued throughout the organisation, even in Europe...Clearly this doesn’t seem to be so much the case any longer.” 4
[20] The applicant went on to express extreme disappointment with the way Mr Mars spoke to him and conveyed “I was totally disgusted and very hurt by it on a personal level.”
[21] The concluding paragraphs of the email state:
“It is my personal opinion that the Swift team (from what I’ve seen this week) have come across as extremely cold, extremely emotionless, extremely unwelcoming and unfriendly and extremely secretive. I’m used to working for an organisation where all the managers at all levels were highly approachable and decisions were made at all departmental levels for the benefit of the business. I guess I just have to get over the fact that the good old days are gone maybe.
Currently I’m in a no-mans land. I don’t know here I stand with Swift. I don’t have a clear idea of my role within the organisation going forward and without knowing this I’m unable to choose whether I wish to be part of it or not. Supposedly it was suggested in the boardroom that each employee was going to have a 1 on 1 sit-down chat with someone from Swift, god help me if my 1 on 1 sit down chat was the one I had with Iain Mars. If it was it might have just have made my decision so much simple and straight forward!”
[22] The respondent concluded the applicant was not happy with the mentioned meeting but was also clearly not happy with the industry, plant or role he was doing. The respondent did not consider the email a formal complaint as asserted to by the applicant.
[23] Having previously identified that the applicant’s specialist role was not a requisite one in terms of their preferred structure the respondent reviewed the applicant’s role at the plant on Thursday 25 February 2010. On Friday 26 February 2010 they had decided that his role was redundant and that the applicant would be dismissed.
[24] The applicant attended a meeting with Ms Sharman on the morning of 26 February and was advised he was being made redundant, effective immediately. He was given calculations of his entitlements, however it was clear that those financial provisions were available subject to the applicant signing a waiver form which included a no further claims clause in relation to his employment and redundancy.
[25] The applicant says he was in a state of shock having been made redundant after 17 ½ years and he wanted to obtain legal advice on his circumstances. He did not sign the release for his payments and was escorted from the facility. He was unable to make any farewells to colleagues.
[26] The applicant, at the time of trial in this matter, had still not received his lawful entitlements based on his redundancy and employment provisions. The respondent indicates they have withheld such funds as the applicant has not returned various items of company property.
[27] In evidence the parties have referred to the various structural changes to the employment of staff at the plant. Various positions were changed and staff moved to new roles. A total of eleven positions were made redundant including the applicant’s. New roles of Plant Accountant, Assistant Accountant and HR Officer were created. These new positions were created at various times but were not offered to the applicant.
[28] Also in evidence were statistics for employment of production personnel. The respondent supplied a breakdown of the employment and termination of such personnel. From the week ending 24 February 2010 to week ending 22 April 2010 a total of 65 personnel were employed and a total of 59 were dismissed, resigned or left for other reasons. The applicant was not offered a role within the production workforce by the respondent prior to redundancy.
[29] The applicant has subsequently made a Workcover claim and has advised he has certificates for restricted duties and is unemployed.
Consideration
Was the dismissal of the applicant a genuine redundancy?
[30] A dismissal which is a genuine redundancy is not an unfair dismissal because of the combined effects of ss 385 and 389 of the Act. In examining the circumstances of this case it is clear from the evidence that the applicant’s specialist role was identified before the transmission of his employment as a position that may not be required by the incoming employer. The new owner’s had an alternative arrangement for such tasks on a group basis and had a contrasting approach to the tasks.
[31] It is also clear from the evidence that a restructuring of the relevant workforce did in fact take place, with staff, including the applicant, made redundant, positions altered and staff transferred.
[32] It was not argued by the parties that a modern award or enterprise agreement applied to the applicant. Therefore there was no failure by the respondent to comply with the provisions of such an instrument regarding consultations on redundancy. No such obligation arises in these circumstances. In these respects the respondent satisfies the requirements of s 389 (1) (a) and (b) of the Act.
[33] The applicant submits that he should have either been offered or considered for one of the new positions created, that of assistant accountant, or been offered a role in the production workforce. That is, it would have been reasonable in all the circumstances he be redeployed to such roles.
[34] In regard to the assistant accountant role, the evidence is that this role was identified after the applicant was made redundant and it is conclusive that the applicant does not possess the necessary qualifications or experience for that role. In regard to redeployment to a position within the production departments, it is in evidence that the applicant had a limited experience over the term of his employment in various locations in production. Those allocations tend to occur in such facilities for various reasons in this industry. In over 17 years of employment the applicant has had limited involvement in various areas.
[35] The location of the facility and employment is such that the respondent is a predominant employer of labour in the area and opportunities for further employment are limited in the region. However there is a distinct contrast in the attributes of the production roles and the applicant’s former position.
[36] The production roles are physical in nature, require a medical clearance and a commitment to skills and experience training for specific time periods. They are ongoing employment positions but subject to commercial capacity and generally have an incidence of mandatory stand-down of labour. The remuneration for such roles would generally be less than $34000 per annum in contrast to the applicant’s former salary of $65000.
[37] The respondent relies on a recent decision of Richards SDP in the matter McAlister v Bradken Limited 5 which endorsed an approach to redeployment in these matters that focuses on the attributes of a role, its required skill set and the salary or remuneration rather than a consideration of every possible position available at the time of redundancy.
[38] In the tribunal’s view this is relevant and akin to a consideration of what may be ‘alternative acceptable employment’ in consideration of an application for a reduction in severance payments available within many industrial instruments of this tribunal. The respondent submits that it would have been unreasonable, if not demeaning to the applicant, to offer him a role in the plant. They expected him in any case to reject such an offer in the circumstances referred to previously, where the applicant on three occasions indicated a lack of motivation to work with them.
[39] Having considered all the evidence the tribunal finds that the applicant did not demonstrate a willingness or motivation to work with his new employer and that in all probability, despite his submissions, the applicant would not have found an offer of production work to be acceptable alternative employment to his role and that it was not reasonable in all the circumstances that he be redeployed to such production positions and redeployment generally.
[40] The tribunal finds that the respondent is not in breach of the requirements of s 389 (2) of the Act.
[41] The tribunal further finds that the redundancy of the applicant was a genuine redundancy as per s 389 of the Act and as such this application is dismissed.
[42] The tribunal encourages the applicant to comply with the required return of company property at his earliest convenience so as to have his redundancy payment available to him.
COMMISSIONER
Appearances:
Mr Taylor in person
Mr Button-Parsonage for the respondent
Hearing details:
Mount Gambier
2010:
27 May
1 [2010] FWA 2571 at pp 2, 3
2 Exhibit R1, Statement of Andy Marvin at para 2-5
3 Exhibit A2, Applicant’s Outline of Argument/Statement
4 Exhibit R1, Attachment A
5 [2010] FWA 203
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