Peter Bradley v United Petroleum Transport Pty Ltd
[2023] FWC 2628
•12 OCTOBER 2023
| [2023] FWC 2628 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Peter Bradley
v
United Petroleum Transport Pty Ltd
(U2022/9113)
| COMMISSIONER SCHNEIDER | PERTH, 12 OCTOBER 2023 |
Application for an unfair dismissal remedy
On 9 September 2022, Mr Peter Bradley (the Applicant) made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that he had been unfairly dismissed from his employment with United Petroleum Transport Pty Ltd (the Respondent). The Applicant seeks compensation.
Background
The Applicant commenced his employment with the Respondent on 17 August 2020.
The terms and conditions of the Applicant’s employment were governed by the Road Transport and Distribution Award 2020 (the Award).
The Applicant was employed as a Tanker Driver and was based out of Kununurra, Western Australia.
The Respondent’s business operations in Kununurra were primarily focused on the distribution of fuel.
The Respondent’s business suffered a downturn in operations during 2021. In August 2022, the Respondent conducted a review of the operations in Kununurra due to the operation losing money.
In late August 2022, the Respondent decided to cease operations in Kununurra and permanently relocate the operation to Darwin.
The Respondent met with the Applicant on 3 September 2022 and advised the Applicant that his employment was ending via redundancy.
The matter was subject to a Hearing on 2 February 2022, the Applicant was self-represented, and the Respondent was represented by Mr Millar.[1]
At the Hearing, the Applicant gave evidence on his own behalf.
The following witnesses gave evidence on behalf of the Respondent:
· Mr Geoffrey Bishop (Mr Bishop), WA Wholesale Manager.
· Mr Guy Hummerston (Mr Hummerston), Executive General Manager.
Legislation
Preliminary matters
The Act requires that I determine several initial matters before considering the merits of the Applicant’s application. There is no dispute between the parties concerning these initial matters, and I am satisfied that none of the usual preliminary issues require attention.[2]
When can the Commission order a remedy for unfair dismissal?
Section 390 of the Act provides that the Commission may order a remedy if:
(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and
(b) the Applicant has been unfairly dismissed.
Both limbs must be satisfied.
I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed.
Genuine Redundancy
Turning to the objection that the dismissal was by way of a genuine redundancy, a genuine redundancy consists of three elements:
(a) the person’s job was no longer required due to changes in operational requirements;[3]
(b) the employer consulted the person about the redundancy, if required by a modern award or enterprise agreement;[4] and
(c) it would not have been reasonable to redeploy the person in the employer’s enterprise or that of its associated entity.[5]
The fulsome definition of the term can be located in section 389 of the Act, which reads:
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.
The Respondent bears the evidentiary onus to demonstrate the factual elements of the jurisdictional objection in this case, [6] the first of which is whether there were changes in its operational requirements necessitating the redundancy of the Applicant.
Changes in operational requirements
In Adams v Blamey Community Group,[7] the Full Bench of the Commission provided a comprehensive overview of the assessment to be undertaken under section 389(1)(a) of the Act when discerning whether the job was no longer required to be performed by anyone because of changes in operational requirements. Essentially, the Full Bench stated that was required were findings of fact on whether:
a)the employer has made the decision that the relevant employee’s job is no longer required to be performed by anyone; and
b)whether that decision was made because of changes in the operational requirements of the enterprise.[8]
Expanding upon the task under section 389(1)(a) of the Act, the Full Bench cautioned that the assessment did not involve a merits review of the employer’s decision to make the person’s job redundant and ‘whether it was objectively fair or justifiable to decide to abolish a position is beside the point, as long as the employer acted as it did because of changes in its operational requirements.’[9]
Consultation
The obligation to consult about the redundancy only arises in circumstances where that obligation is prescribed in a modern award or an enterprise agreement. In this case, an enterprise agreement did not cover the Applicant, but an Award did.
The Explanatory Memorandum to the Fair Work Bill 2008 (Cth) provides some assistance in understanding what the Act contemplated in respect of consultation under section 389(1)(b) of the Act:
“Paragraph 389(1)(b) provides that it will not be a 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.[10] “
If an employer is obliged to consult and fails to do so, it is said that there cannot be a genuine redundancy.[11] Consultations should be meaningful and should be engaged in before an irreversible decision to terminate has been made.[12] It is further accepted that consultation is not perfunctory advice on what is about to happen; consultation consists of providing the persons with a bona fide opportunity to influence the decision maker.[13]
Redeployment
In Ulan Coal Mines Ltd v Honeysett, the Full Bench observed that section 389(2) of the Act placed a limitation on an employer’s capacity to mount the defence that the dismissal was a case of a genuine redundancy.[14] It expressed that the defence was not available, if it would have been reasonable to redeploy the employee; this of course is a hypothetical question answerable only by reference to all the relevant circumstances.[15]
Whether it would have been reasonable to redeploy the employee is anchored to the point of time of the dismissal.[16] Further, in answering the question, consideration turns to the nature of any available position, the qualifications required to perform the job, the employee’s skills, qualifications and experience, the location of the job in relation to the employee’s residence, and the remuneration offered.[17]
The consideration of the reasonableness of redeployment also involves an examination of the actions taken by the employer to redeploy the employee and the actions of the employee, that is, her or his conduct and approach to the redeployment.
Submissions and Evidence
Respondent
The Respondent submits that the Applicant’s employment was dismissed by way of genuine redundancy.
The Respondent submits that the business operations were permanently relocating from Kununurra to Darwin, approximately 870 kilometres away. The Respondent’s submissions conclude that the distance between the two sites was of such a length that it was not feasible for the Applicant to be redeployed.
The Respondent submits that consultation had occurred with the Applicant prior to his redundancy, as the Applicant (by his own admission, in his statement) confirmed that he had discussions with Mr Bishop some months prior. The content of the discussions indicated that work was quiet in Kununurra and that he could complete work for the Respondent in Darwin.
The Respondent submits that they attempted to consult with the Applicant on 2 September 2022, however he could not be reached on this day. The Respondent is of the position that there was realistically nothing to consult with the Applicant about, as it would not materially change the outcome of the circumstances.
The Respondent submits that there would have been no utility in further consultation with the Applicant given the factual circumstances of the Respondent’s operations.
Mr Hummerston gave the following evidence:
· He commenced his employment with the Respondent on 15 August 2022.
· Following a review of the business operations, it was found that the Ord Fuel Supplies (OFS) business unit had been losing, on average, $15,000 per month for at least the previous 12 months.
· In 2018, the OFS business unit sold around 1,000,000 litres of fuel per month. However, by 2022, this had decreased to 250,000 litres per month and the business was no longer sustainable.
· Following discussions with Mr Bishop, it was determined that the performance of the business could be improved by moving the operation out of Kununurra and relocating the operation to Darwin. The rationale behind moving the operation to Darwin included reduced costs, greater opportunity to grow the business, and improved integration with other units within the business.
· In late August 2022, Mr David Szymczak, CEO of the Respondent, approved the recommendation to relocate the operations from Kununurra to Darwin. Discussions were also held with Ms Linda Robinson (Ms Robinson), the General Manager of Human Resources, and it was decided that, due to the relocation of the business operations from Kununurra to Darwin, the Applicant’s role would be made redundant.
· Ms Robinson advised that the paperwork would be provided to the Applicant in the appropriate manner and that a meeting would be held with him to discuss the changes impacting his employment.
It should be noted that, Ms Robinson did not provide a witness statement or any evidence to confirm that this meeting had occurred prior to the Applicant being advised that his employment was ending via redundancy on 3 September.
Mr Bishop gave the following evidence:
· When the Applicant was employed by the Respondent the Applicant was based in Kalgoorlie, in Western Australia, not in Queensland.
· The Applicant was interviewed in Perth and upon being successful relocated to Kununurra, in Western Australia, to take up the position with the Respondent.
· The Respondent’s business operations in Kununurra decreased significantly in early 2021, following the loss of a major customer.
· During 2020 and 2021, Mr Bishop had discussions with Mr Brett Crawford, the Executive General Manager of Wholesale United Petroleum, and Mr Stephen Widdop, General Manager of Wholesale United Petroleum, over ways in which to increase business operations in Kununurra. This included the Applicant completing work in Darwin using the tanker from Kununurra.
· On 5 March 2021, the OFS business unit of the Respondent based in Kununurra completed work on behalf of the Wholesale Division of United Petroleum in the Northern Territory.
· This process had limited success for the business as the operational requirements of having the tanker based in Kununurra meant that the tanker and driver were not always available to complete work in the Northern Territory.
· The Respondent believed that having the tanker and driver based in Darwin would result in a better operating model for the Respondent moving forward. On 31 August 2022, Mr Bishop was advised by Mr Hummerston that the decision to permanently relocate the operation from Kununurra to Darwin had been decided upon by the Respondent.
· Mr Bishop attempted to contact the Applicant on 2 September 2022, however he could not reach the Applicant. Mr Bishop sent several text messages to the Applicant, on 2 September 2022, which requested the Applicant meet him at the BP Truck Stop in Whishart, Darwin, between 8:00am and 9:00am on 3 September 2022.
· On 3 September 2022, Mr Bishop met with the Applicant and advised him that he was being made redundant as the business was moving the operation from Kununurra to Darwin.
Applicant
The Respondent engaged the Applicant in August 2020, to fulfil the position of a Tanker Driver in Kununurra, Western Australia.
The Applicant submits that he had moved from his home in Queensland to Kununurra to take up employment with the Respondent.
It was the evidence of the Applicant that he did not receive any forewarning or consultation, prior to being advised of his employment being made redundant on 3 September 2022, or that his employment was at risk of redundancy.
The Award at Part 7 Clause 30 contains a clause outlining the requirements for Consultation about Major Workplace Change.
“Part 7— Consultation and Dispute Resolution
30. Consultation about major workplace change
30.1 If an employer makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must:
(a) give notice of the changes to all employees who may be affected by them and their representatives (if any); and
(b) discuss with affected employees and their representatives (if any):(i) the introduction of the changes; and
(ii) their likely effect on employees; and
(iii) measures to avoid or reduce the adverse effects of the changes on employees; and
commence discussions as soon as practicable after a definite decision has been made.
30.2 For the purposes of the discussion under clause 30.1(b), the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including:
(a) their nature; and
(b) their expected effect on employees; and
(c) any other matters likely to affect employees.
30.3 Clause 30.2 does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer’s interests.
30.4 The employer must promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussion under clause 30.1(b).
30.5 In clause 30 significant effects, on employees, includes any of the following:
(a) termination of employment; or
(b) major changes in the composition, operation or size of the employer’s workforce or in the skills required; or
(c) loss of, or reduction in, job or promotion opportunities; or
(d) loss of, or reduction in, job tenure; or
(e) alteration of hours of work; or
(f) the need for employees to be retrained or transferred to other work or locations; or
(g) job restructuring.
30.6 Where this award makes provision for alteration of any of the matters defined at clause 30.5, such alteration is taken not to have significant effect.”
The Applicant submits, in summary, the below:
· The Respondent failed to consider redeployment opportunities within the Respondent’s business such as the Darwin position.
· The Applicant submits that he would have moved to Darwin in order to maintain his employment with the Respondent.
· The Respondent failed to consult the Applicant in relation to the proposed change prior to the decision being made to make the Applicant’s position redundant.
Findings
I have considered the submissions and evidence of the parties and I find that the Applicant’s dismissal was not a case of genuine redundancy.
The Respondent made a perfectly reasonable and legitimate business decision to move the operation from Kununurra to Darwin. However, the Respondent had an obligation to properly consult with the Applicant about the impact that this decision would have on his employment.
The Respondent made a strong assertion that it was not viable or reasonable for the Applicant to move from Kununurra to Darwin to continue working with the Respondent. I do not agree with or accept this assertion as the Respondent has provided no evidence to support this assertion.
The Respondent is simply relying upon the distance of the move to assert that it was not reasonable for the Applicant to move to Darwin. I accept that, in many cases, a move of 800km would not be reasonable. However, the history of the Applicant’s employment relationship with the Respondent would suggest that this is not the case.
The Applicant had already moved from Kalgoorlie to Kununurra to commence his employment with the Respondent, a distance of around 2500km. The Applicant had also been completing work for the Respondent in Darwin prior to his dismissal. The nature of the Applicant’s work means that he is travelling significant distances and therefore may have an increased degree of flexibility in relation to his place of residence when compared to most employees.
I note that the Applicant submits that he would have accepted the position with the Respondent in Darwin, had it been offered to him. Whether or not this would have been the case, in reality, I cannot be certain of. However, the history of the employment relationship between the parties is evidence enough that the Respondent should have at least asked the question of the Applicant considering that, in these circumstances, the alternative was the Applicant’s employment being made redundant.
The Respondent makes two further assertions that I do not accept. The first is that the Respondent had previously consulted with the Applicant in relation to the change in operation. The second is that there was no point in consulting with the Applicant as he was the only impacted employee and there would be no change to the decision.
In relation to the first assertion, I do not accept that the Respondent had previously consulted with the Applicant. Rather, the parties had discussions over the Kununurra operation having difficulties and the Applicant completing work out of Darwin. However, there is no evidence that these discussions included any consultation or discussions with the Applicant over the impact on his employment and the probable outcome of his role being made redundant.
I do not accept or agree with the Respondent’s assertion that there was no utility in consulting with the Applicant once the decision had been made. Whilst I accept that the Applicant was the only employee impacted by the decision and the decision would not change, the Respondent’s failure to consult with the Applicant meant that any discussion about the Applicant moving to Darwin did not occur.
I am therefore satisfied that the dismissal was not a case of genuine redundancy.
Having considered each of the initial matters, I am now required to consider the merits of the Applicant’s application.
Was the dismissal harsh, unjust or unreasonable?
As has been established, I am satisfied that the Applicant is protected and therefore I must now consider the second limb.
Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust, or unreasonable, the Commission must take into account several criteria.
Section 387 of the Act reads:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
I am required to consider each of these criteria to the extent that they are relevant to the factual circumstances before me.[18]
I set out my consideration of each below.
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?
In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[19] and should not be “capricious, fanciful, spiteful or prejudiced.”[20] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[21]
The Applicant submits that there was no valid reason for the dismissal related to his capacity or conduct because the reason set out in the termination letter does not relate to capacity or conduct.
The Applicant submits that the Respondent did not have a valid reason to make the Applicant redundant as the Applicant would have relocated to Darwin to continue his existing position with the Respondent.
The Respondent submits that there was a valid reason for the dismissal of the Applicant as his position was no longer required within the business.
The Respondent submits that a valid reason for the dismissal arose due to the operational requirements of the Respondent being such that there was no longer a position for the applicant to fulfill. The Respondent submits that this was consistent with UES Pty Ltd v Harvey (2012) (UES), Tew v Viemist Pty Ltd (2013) FWC 2971, and Maswan v Escada (2011) FWC 4239.
The Respondent submits that, consistent with Rosenfeld v United Petroleum Pty Ltd (2012) FWA 3760 and Smith v AWH Pty Ltd (2016) FWC 6861 and (2017) FWCFB 1981, a termination can still be fair even if there is no genuine redundancy.
The Respondent submits that, despite the failure to consult or potentially redeploy the Applicant, there still was a valid reason for the Applicant’s dismissal. The Respondent submits that the decision to discontinue fuel distribution operations in Kununurra and cease the Applicant’s employment was for a valid reason.
Findings
The Respondent, after reviewing the financial viability of the Kununurra operation, made a legitimate, reasonable, and entirely rational business decision to cease operations in Kununurra. The result of this decision was that the Applicant’s employment was redundant as there was no longer any work for him in Kununurra.
I find that the Respondent relied upon the reduction in the Kununurra operation and decision to move such operation to Darwin as the reason for the Applicant’s termination.
As this reason does not relate to the Applicant’s conduct or capacity, I consider this neutral in my assessment. The Respondent’s reason for dismissal is discussed further in this decision.
Was the Applicant notified of the valid reason?
Proper consideration of section 387(b) of the Act requires a finding to be made as to whether the applicant “was notified of that reason”. Contextually, the reference to “that reason” is the valid reason found to exist under section 387(a) of the Act.[22]
Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,[23] and in explicit[24] and plain and clear terms.[25]
The Applicant submits that he was not notified of the valid reason on the basis that there was not a valid reason for his dismissal. The Applicant submits that, in the event there was a valid reason for his dismissal, he was not notified of the reason for his dismissal prior to decision being made.
The Respondent submits that the Applicant was notified of the valid reason on 3 September 2022 at the meeting between the Applicant and Mr Bishop.
Findings
The Respondent met with the Applicant on 3 September 2022 and provided him with a prepared letter confirming that his employment was ending.
The Applicant was provided in writing confirmation that his employment was ending due to redundancy.
The Respondent however did not notify the Applicant that his employment was at risk of redundancy prior to the meeting on 3 September 2022.
The Applicant was notified of the “reason” for his dismissal at the same time it took effect.
However, it should be noted that, as I concluded there was no valid reason related to his capacity or conduct, he could not have been notified of it.
Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?
An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.[26]
The opportunity to respond does not require formality and this factor is to be applied in a common-sense way to ensure the employee is treated fairly.[27] Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.[28]
Submissions
The Applicant submits that he did not have an opportunity to respond to any valid reason. The Applicant submits that he was directed to attend a meeting with Mr Bishop on the morning of 3 September 2022.
The Applicant submits that at the meeting, Mr Bishop handed him his letter of termination and advised the Applicant that he “had been put off”.
The Applicant submits that he did not have an opportunity to respond to the reasons for dismissal, rather the decision had been made and he was not provided any procedural fairness.
The Respondent submits that it was pointless in providing the Applicant with an opportunity to respond as the decision had been made to relocate the Kununurra operation to Darwin and there was nothing that the Applicant could say that would change that outcome.
It is clear that the Respondent made the decision to terminate the Applicant’s employment and determined that there was nothing that the Applicant could say which would change the Respondent’s position on the Applicant’s employment.
As a result, the Applicant was not provided with the opportunity to discuss the “reason” for his dismissal.
However, it should be noted that, as I concluded there was no valid reason related to his capacity or conduct, he could not have been given the opportunity to respond to such reason.
Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?
Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
There is no positive obligation on an employer to offer an employee the opportunity to have a support person:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”[29]
From the submissions and evidence provided, the Applicant was advised to meet the Respondent’s representative at the BP service station on 3 September 2022. There is no evidence or submissions from the Applicant that he requested to have a support person present for this meeting and the Respondent unreasonably refused this request.
In all the circumstances, I find that the Respondent did not unreasonably refuse to allow the Applicant to have a support person present at discussions relating to the dismissal.
Was the Applicant warned about unsatisfactory performance before the dismissal?
As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.
To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal and to what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
Neither party submits that the size of the Respondent’s enterprise was likely to impact on the procedures followed in effecting the dismissal.
From the submissions and evidence before the Commission, it is clear that the Respondent has a dedicated internal human resources management specialists employed within the business.
The Respondent submits that there were no deficiencies in the termination procedures. For the reasons that I have outlined in other sections of this decision, I do not agree with this statement.
The Respondent has a Human Resources department at its disposal who were, in some capacity, involved in the dismissal. The facts relating to the Respondent’s size and dedicated human resources management team should not have resulted in any negative impact on the procedures followed.
What other matters are relevant?
Section 387(h) of the Act requires the Commission to take into account any other matters that the Commission considers relevant.
The Applicant submits that the following other matters are relevant to the Commission’s consideration of whether the dismissal was harsh, unjust, or unreasonable. In the days prior to his termination, he sent two emails to management raising concerns in relation to the safe operation and maintenance of the equipment he was using.
The Applicant alleges that these emails may have provided the Respondent with further motivation to terminate his employment. The emails in question are outlined in further detail below:
· 30 August 2022 – email to management of United Petroleum which outlines three specific items which need to be resolved as they could be impacting the safe operation of the truck.
· 31 August 2022 – the Applicant sent a second email to United Petroleum management; this email is more colourful in the language used by the Applicant and expresses a frustration with the status of the truck and decision being made by the business.
“we can’t do it because we don’t have gear to do it with, because people won’t listen and either fix things properly when they need to be or replace gear, even though they have spent more than $500 000 on the gear we have, and 90% of it is still not working and is mostly not worth fixing and is all unroadworthy”
“The people making all these decisions have not even seen the gear but still think they know what’s best for the gear. If they want to make more money and sell more fuel they need to start listening to the people doing the work and either replace or fix the gear with gear that’s purpose relevant for the work it has to do….”
“The amount of work and customers that we have lost is completely because of the lack of working gear and total unreliability, but before that we were doing 550 000 litres a fortnight with one road train, even now with the right gear we could be delivering 600 000 litres a fortnight. And if they want to grow the business they will need bigger and newer purpose built gear to do more work and be competitive with other companies thanks”
The Respondent submits that the following other matters are relevant to the Commission’s consideration of whether the dismissal was harsh, unjust, or unreasonable:
· The Respondent outlined that the Applicant had failed to establish how the above emails were relevant to the decision to terminate the Applicant’s employment, other than the timeframe in which they were sent.
· The Respondent submits that the decision to relocate the operations from Kununurra to Darwin had been discussed and considered by the prior to the Applicant sending the emails in question, the Respondent also notes that the underlying reason for the decision to relocate the operation was a financial decision due to the operation running at a loss each month.
· The Respondent submits that the emails sent by the Applicant, had no bearing on the decision to make the Applicant redundant.
Findings
I have considered the submissions and evidence of the parties in relation to the Applicant’s allegations that his complaints to and about management in relation to the maintenance of his tanker played a part in the decision to terminate his employment. I do not agree with this submission.
I have also considered the evidence of the Respondent that this business decision to relocate the operation from Kununurra to Darwin was not made overnight and was something that had been considered for over 12 months.
I certainly understand why the Applicant may have been suspicious as to why his employment was terminated so close to the emails in question being sent to management. With the exception of the close timing between the emails and the Applicant being told of his redundancy there is no evidence to suggest the two situations are linked.
I have formed the opinion that the Applicant’s emails to management were not a reason for his termination, rather the Respondent was in a position whereby the operation in Kununurra was losing around $15,000 per month and the Respondent was required to make significant changes in relation to the nature of the operation.
From the evidence provided by the Respondent to the Commission, Mr Hummerston and Mr Bishop (and others in the Respondent’s business) were engaged in planning over the relocation of the operation to Darwin prior to the Applicant’s emails being sent.
From the evidence provided, it is apparent that the Respondent had an informal conversation with the Applicant regarding the change in operations.
Nevertheless, I am concerned that the Respondent’s failure to adequately consult with the Applicant, in relation to the move of operations, impacted his dismissal.
The Respondent did not take further action to ensure that the Applicant was aware of what impact the move could have on his ongoing employment.
Earlier in this decision, I concluded that there was no valid reason related to the Applicant’s capacity or conduct, in line with the majority’s conclusion in UES. I am not of the opinion that the conclusion raised by the minority in UES, in regard to a valid reason, is applicable to this matter as the Applicant was selected purely because of location.
I conclude that the Respondent did not properly communicate the change in operational requirements, and the severity of the impact of this, or consult with the Applicant, prior to the decision to terminate being made nor did it provide any kind of formal or clear warning of the seriousness the downturn posed for his ongoing employment.
Rather, it appears that the Applicant’s role did indeed become redundant in the general sense, as noted in UES.
The Respondent did not properly consult with the Applicant regarding the downturn in business, as required by the Award. At the most, it appears the Respondent had some informal discussions with the Applicant regarding the plans to move the operation.
On the evidence, it appears that, any warning or communication to the Applicant regarding these issues was superficial and did not clearly indicate that the plan would lead to the termination in a manner that I would, even to a merely passable degree, consider a form of consultation.
No consultation regarding the downturn and its potential effects occurred in writing.
The Respondent had a requirement to clearly consult with the Applicant; explaining that there was a downturn in business that required a move of operations and that his employment, would be at risk of termination. If this had occurred, the Applicant would have had greater reason, and better information on which to consider moving or entertain redeployment opportunities, understanding that it could result in dismissal if he did not.
There is a clear lack of any contemporary and clear warnings or consultation regarding the operational downturn and the effect it could have on the Applicant’s ongoing employment.
I am not satisfied that this consultation, or lack thereof, was appropriate in the circumstances and does not satisfy the requirements under the Award.
The Respondent, in the circumstances of this matter, should have attempted to redeploy the Applicant. I am satisfied that, due to the transient nature of the Applicant’s role, it was not unreasonable to attempt redeployment to Darwin. Importantly though, I note that the major failure was the lack of consultation, as proper consultation would have made the Applicant’s willingness to move apparent to the Respondent. I am of the opinion that, if the Respondent had consulted with the Applicant in the manner required, the Applicant would have been in a more fully informed position to contemplate alternative employment. It is clear that the Applicant is aggrieved by his dismissal and that, at the least, proper consultation could have assisted his awareness of the situation and clarified the very probable outcome of termination.
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?
I have made findings in relation to each matter specified in section 387 of the Act as relevant.
I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust, or unreasonable.[30]
I have determined that the Respondent’s failure to comply with the Award meant that the decision to terminate the Applicant’s employment was completed in a manner which was unjust.
The Award required the Respondent to consult with employees if there is major change in the operational environment which is going to impact on the employee’s employment.
The Respondent failed to adhere to the requirements of the Award and consult with the Applicant in relation to the change in operational location which resulted in the Applicant being dismissed.
The failings of the Respondent to properly follow the requirements of the Award, does not change that there was a legitimate reason to end the employment relationship between the Applicant and the Respondent.
It is clear that the Respondent’s changing operational requirements and decision to relocate operations constituted a major change for which the Applicant should have been consulted on prior to the decision being made.
I have considered the submissions and evidence of the Respondent and it is evident that the operation in Kununurra was no longer financially viable for the Respondent and, as a result of this decision, the Applicant’s position in Kununurra was no longer required.
The Respondent’s decision to relocate the operation from Kununurra to Darwin is logical and made sense in the circumstances. I accept that this was a sensible reason for termination. However, this does not excuse the failure to consult or attempt to redeploy the Applicant.
The Respondent had an obligation to the Applicant to ensure it complied with the requirements of relevant industrial instruments prior to making any decision in relation to the Applicant’s employment ending. For the reasons I have outlined above, the Respondent failed to provide the Applicant with a fair go all round and did not provide him with a procedurally fair process. As a result of this failure by the Respondent, I have found that the termination was unjust.
The Respondent failed to consult with the Applicant prior to making the decision to relocate the operation from Kununurra to Darwin. I accept that, had the Respondent complied with this obligation under the relevant Award, then the Applicant would have had the ability to explore the possibility of relocating from Kununurra to Darwin. Likewise, the Respondent should have provided the Applicant with the opportunity to respond to his termination prior to making the final decision to terminate the Applicant’s employment.
Conclusion
I am therefore satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the Act.
Directions for a hearing on remedy will be issued in due course.
COMMISSIONER
[1] I note that the Applicant retained a representative for this matter. However, on 30 January 2023, three days prior to the hearing, the Applicant’s Representative filed a Form F54 confirming that they no longer represented the Applicant. I note that, at this time, the Respondent had retained representation and briefed Mr Millar. I considered that, due to the late notice of the Applicant’s ceasing to be represented due to the Applicant’s apparent failure to communicate, it would be prejudicial to the Respondent to deny permission to appear on such short notice especially noting the complexity of the jurisdictional objection raised and circumstances of the matter.
[2] The application was made within the relevant time period (s.394(2)). There is no dispute that the Applicant has been dismissed (s.386). The Applicant is a person protected from unfair dismissal as; the Applicant did not earn over the high-income threshold, the Applicant’s employment was subject to a Modern Award, and it is not disputed that the Applicant has served the minimum employment period (s.382). The Small Business Fair Dismissal Code is not applicable (ss.385; 388(1)), Additionally, the Hearing was held in compliance with section 397. Genuine redundancy (s.389), however, is an issue in this matter.
[3] Ibid s 389(1)(a).
[4] Ibid s 389(1)(b).
[5] Ibid s 389(2).
[6] (2014) 244 IR 252, 262–3 [27] – [29], 265–6 [32].
[7] [2016] FWCFB 7202.
[8] Ibid [14].
[9] Ibid, quoting [2014] FWC 7829, [16].
[10] Explanatory Memorandum, Fair Work Bill 2008 (Cth) 247 [1550].
[11] See (2012) 215 IR 263 (UES).
[12] (1998) 88 IR 202, 218.
[13] [2001] AIRC 1145, [25].
[14] (2010) 199 IR 363, 370 [26].
[15] Ibid.
[16] Ibid [28].
[17] Ibid.
[18] [2011] FWAFB 7498, [14]; PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
[19] (1995) 62 IR 371, 373.
[20] Ibid.
[21] (1996) 142 ALR 681, 685.
[22] [2020] FWCFB 6429, [19]; [2020] FWCFB 533, [55].
[23] (2000) 98 IR 137, 151.
[24] Print Q3730 (AIRC, Holmes C, 6 October 1998).
[25] Ibid.
[26] Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].
[27] (2010) 194 IR 1, 14-15.
[28] (1995) 60 IR 1, 7.
[29] Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].
[30] (2002) 117 IR 357, [51]. See also PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; [1999] FCA 1836, [6]–[7].
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