Mr Thomas Hardie v Andec Fire Systems Pty Ltd

[2015] FWC 4132

[2015] FWC 4132

FAIR WORK COMMISSION

DECISION

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

Mr Thomas Hardie
v
Andec Fire Systems Pty Ltd
(U2015/297)

COMMISSIONER CLOGHAN PERTH, 29 JUNE 2015

Application for relief from unfair dismissal - jurisdictional objection.

[1] On 23 January 2015, Mr Thomas Hardie (Mr Hardie or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his former employer, Andec Fire Systems Pty Ltd (Employer).

[2] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[3] In response to the application, the Employer asserts that the Applicant is not protected from unfair dismissal because:

● the dismissal was a case of genuine redundancy.

[4] The Employer’s jurisdictional objection as initially dealt with by written submissions, and subsequently, a conference in compliance with s.397 of the FW Act.

[5] The Applicant was represented at the conference by Mr M Rose, Organiser, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU). The Employer was represented by Mr J Ladec, Director.

[6] This is my decision and reasons for decision on the Employer’s jurisdictional objection.

RELEVANT LEGISLATIVE FRAMEWORK

[7] The relevant provisions relating to an unfair dismissal can be found at s.385 of the FW Act as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC 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.”

[8] The meaning of genuine redundancy is found at s.389(1) and (2) of the FW Act.

[9] Consequently, the question for determination is whether Mr Hardie’s dismissal was a genuine redundancy in accordance with s.385(d) of the FW Act.

RELEVANT BACKGROUND

[10] Mr Hardie commenced employment on 22 November 2013 as a casual Sprinkler Fitter. The terms and conditions of his employment were set out in correspondence dated 21 November 2013 which is entitled “Letter of Engagement - Cloisters on Hay Project Perth WA”.

[11] The Letter of Engagement states that “your termination date will be when you are released from the project which is anticipated to be 13 December 2013 (sic)”.

[12] The Letter of Engagement also refers to Mr Hardie’s terms and conditions of employment being set out in the Andec Fire Systems (Australia) Pty Ltd and CEPU - Plumbing Division (WA Branch) Fire Sprinkler Services Enterprise Agreement WA 2012-2016 (Andec/CEPU Agreement).

[13] On 17 December 2014, the Employer provided correspondence to Mr Hardie which is entitled “Notice of Termination - Cloisters on Hay Project Perth WA” and relevantly reads:

“We wish to inform you that as per the terms and conditions in your Offer of Employment associated with the Cloisters project both the Cloisters project and 32 St Georges Terrace Perth projects are nearing their completions and therefore your employment will cease on 9th January 2015.”

[14] Mr Hardie ceased on 9 January 2015 and made application to the Commission on 23 January 2015.

EMPLOYER’S SUBMISSION

[15] In its response to the application, the Employer asserts that his dismissal was a case of genuine redundancy and submits that Mr Hardie:

• was employed on a project basis. Initially on the Cloisters project, stage 12 which was completed on 1 August 2014;



• his employment continued at the Gateway Shopping Centre Cockburn. This Project was completed on 30 October 2014;



• subsequently he continued employment on the 32 St Georges Terrace project which was scheduled for completion on 28 February 2015;



• at the time of his dismissal, he was given three (3) weeks’ notice;



• project work was decreasing;



• other employees were retrenched at the same time as the Applicant;



• the Baldivis project was an intensive eight (8) week project ending on 3 March 2015. Employees were required to work long hours and weekends;



• Mr Hardie was not considered suitable for the Baldivis Project due to his previous work history which had to take into account his personal commitments;



• notwithstanding Mr Hardie’s personal commitments, he was offered a short term engagement in similar terms to other employees on the Baldivis Project. To date, the Employer has had no response to that offer.

APPLICANT’S SUBMISSION

[16] In his application, which was received before the Employer’s response, Mr Hardie submits:

• the “project/s” based on the letter of offer, “are” still not completed;



• he was not given any written or verbal communication regarding his performance or conduct;



• the Employer was employing both before and after his termination of employment, Sprinkler Fitters and Trades Assistants;



• that his dismissal was unfair because, although family commitments limited the amount of overtime he was able to undertaken, he was willing to do overtime when he was available. Further, he felt that the amount of overtime he worked was reasonable.

CONSIDERATION

[17] The Employer has set out the names of 18 employees who have been dismissed since December 2014 as a consequence of a reduction of contractual work. Four (4) employees had their employment terminated in December 2014.

[18] Eight (8) employees were terminated in March 2015, from what appears to be the Baldivis Project. One (1) employee was terminated from the Baldivis Project in February 2015. These numbers support the Employer’s submission that the Baldivis Project was a short term intensive project.

[19] The Employer documents that there are no employees at 32 St Georges Terrace as at 18 March 2015 which is consistent with its submission that the contract was due to be completed on 28 February 2015.

[20] Mr Hardie’s contract of employment was specifically for the Cloisters on Hay Project. While at the time of employment, the Letter of Engagement foresaw the Project being completed in December 2014, according to the Employer’s submission, the actual practical completion was 14 July 2014.

[21] The actual completion date of the Cloisters Project on 14 July 2014 appears to be consistent with Mr Hardie continuing his employment in July/August 2014 at the Cockburn Gateway Shopping Centre until 30 October 2014. October 2014 is consistent with the Employer’s statement that the actual practical completion for the Cockburn Gateway Project was 31 October 2014.

[22] Mr Hardie continued his employment at 32 St Georges Terrace which was due for completion on 6 February 2015.

[23] The Employer submits that Mr Hardie, along with another employee, had their employment terminated due to the 32 St Georges Terrace Project winding down to its completion.

[24] In response to the Employer’s detailed statement of facts and submission, the Applicant claims on 1 April 2015 that, “since the Applicant was terminated the Employer has engaged at least 4 new employees in the business”. Further, the Applicant seeks confirmation from the Employer whether any of the new employees are qualified Sprinkler Fitters because “if this was the case (as the Applicant believes) then he redundancy was not genuine”.

[25] The Employer confirmed that it had employed further employees in January, February and March 2015 for the Baldivis Project only. A project which was initially due for completion on 26 February 2015 but actual practical completion occurred on 1 May 2015.

[26] The Employer also advised that Mr Hardie was sent an offer of employment on 31 January 2015, with respect to work on the Baldivis Project to which the Employer has not received a response.

[27] From the material provided to the Commission, it is clear that the nature of Mr Hardie’s work as a Sprinkler Fitter is project based. That is, sprinklers are installed on a project, the “job” is completed and the employees move to another project if available.

[28] The Employer requires Mr Hardie (and other employees) to carry out a specific function. Once the task is completed, the work and employment on that particular project is finished.

[29] Mr Hardie’s (and other employees) place of work is not fixed, but is determined on where the Employer has been successful in obtaining contracts to install sprinklers.

[30] In Mr Hardie’s case, his dismissal was not due to performance or conduct, but simply as a consequence of his particular kind of work ceasing on the Project he was employed for. In fact, the Employer continued to employ Mr Hardie, even though work at the Cloisters Project had ceased. Specifically, Mr Hardie’s letter of engagement stated “your termination date will be when you are released from the project which is anticipated to be 13 December 2013 (sic)” - which presumably was meant to be 13 December 2014.

[31] Mr Hardie’s letter of engagement also specifically makes reference to performing his duties at the Gateway Shopping Centre, Baldivis “or elsewhere as reasonably directed by the Employer”. This mobility clause in the letter of engagement is reflective of the project nature of the Employer’s business and the work carried out by Mr Hardie.

[32] It would appear that at the practical completion of the Cloisters Project, Mr Hardie was not dismissed but transferred to another project and his work continued until 9 January 2015. Between the completion of the Cloisters Project and 9 January 2015, and his dismissal, the Employer found suitable alternative employment; those options ceased by 9 January 2015.

[33] Whether a dismissal is a genuine redundancy is a factual exercise. In this application, the Employer has set out sufficient facts for the Commission to be satisfied that the dismissal was for no other reason than the work Mr Hardie was employed to carry out, had ceased or was ceasing, or expected to cease in the near future.

[34] Put shortly, what was the cause of the dismissal? The cause of the dismissal was the cessation of work for which Mr Hardie was employed.

[35] With respect to redeployment to the Baldivis Project, the Employer describes it, as an intensive project requiring employees to work long hours and weekends. Mr Hardie concedes his ability to work overtime was limited. For this reason, the Employer considered Mr Hardie unsuitable for such work. In such circumstances, the Employer’s request is not unreasonable.

[36] Tension often arises between an employer’s business commitments and an employee’s unavailability to work overtime. On this occasion, I am satisfied, redeployment of Mr Hardie to a position on the Baldivis Project was not unreasonable pursuant, to s.389(2) of the FW Act.

[37] Mr Hardie was employed on a casual basis and paid, in accordance with the Andec/CEPU Agreement, an additional 25% loading on his hourly rate of pay. Consistent with the Andec/CEPU Agreement, Clause 8 dealing with severance and redundancy does not apply to casual employees. These provisions are consistent with the Plumbing and Fire Sprinklers Award 2010 (Modern Award). In view of the provisions of the Andec/CEPU Agreement and the Modern Award, I am satisfied that the Employer has complied with paragraph 389(1)(b) of the FW Act.

CONCLUSION

[38] For the reasons set out above, I am satisfied that Mr Hardie’s dismissal was a case of genuine redundancy, and consequently, he does not meet the definition of unfair dismissal in s.385 of the FW Act. Accordingly, the application must be dismissed. An order to this effect is issued jointly with this Decision.

COMMISSIONER

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