DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Peter Davison
v
DHL Supply Chain (Australia) Pty Ltd
(U2021/2094)

DEPUTY PRESIDENT BOYCE

SYDNEY, 8 OCTOBER 2021

Application for an unfair dismissal remedy – respondent claims applicant’s dismissal a “genuine redundancy” within the meaning of s.389 of the Fair Work Act 2009 – job no longer exists due to changes in operational requirements – whether enterprise agreement consultation clause applied – enterprise agreement consultation clause applied – respondent found to have not complied with enterprise agreement consultation clause – whether redeployment was reasonable in all the circumstances – redeployment not reasonable in all the circumstances – extensive redeployment process engaged in – applicant only applied for one of 33 available roles – applicant unsuccessful in application for available role – implication of findings in this decision to unfair dismissal merits decision – objection on the basis of “genuine redundancy” dismissed – proceedings to be relisted on a date to be fixed

Introduction

[1] Mr Peter Davison (Applicant) has filed a Form F2 with the Fair Work Commission (Commission), being an application for an unfair dismissal remedy (Application). By way of that Application, the Applicant claims that he was dismissed from his employment with DHL Supply Chain (Australia) Pty Ltd (Respondent) on 25 February 2021, and that his dismissal was “unfair” within the meaning of Part 3-2 of the Fair Work Act 2009 (Act).

[2] In the Form F3 Employer Response filed with the Commission, the Respondent asserts that the Applicant’s dismissal was a case of “genuine redundancy” within the meaning of s.389 of the Act, and that the Applicant is thus not a person protected from unfair dismissal (s.385(d) of the Act).

[3] Following the receipt of submissions and evidence in accordance with directions made, I held a hearing in Sydney to resolve the Application. Ms Melinda Bolton, Industrial Officer, United Workers Union (UWU) appeared for the Applicant. Mr Michael Tamvakologos, Partner, Seyfarth Shaw lawyers, appeared with permission for the Respondent. Following the hearing, written closing submissions from both parties were filed.

[4] Having considered the evidence tendered, and the submissions of the parties on the facts and the law, I have determined that the Applicant’s dismissal was not a case of “genuine redundancy” within the meaning of the Act. My reasons for this decision follow.

Representation by lawyer or paid agent

[5] The Respondent sought permission to be represented by a lawyer in these proceedings. The Applicant opposed the Respondent being granted permission to be legally represented. Following the receipt of submissions in accordance with directions made, I granted permission for the Respondent to be legally represented generally by solicitors from Seyfarth Shaw lawyers pursuant to the discretion afforded to me under s.596 of the Act.

[6] I made this decision on the basis that the matter has complexity (given the number of disputed facts and questions of law between the parties)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] FWC 4573
Decision Date: 8 OCTOBER 2021

CaseChat Overview and Summary

In the case of Peter Davison against DHL Supply Chain (Australia) Pty Ltd, the Fair Work Commission was tasked with determining whether the dismissal of Mr. Davison by DHL was unfair, as claimed by the applicant, or justified as a genuine redundancy as asserted by the respondent. The dispute arose from Mr. Davison's termination, which DHL argued was necessary due to changes in operational requirements that rendered his position redundant. The crux of the matter lay in whether the dismissal complied with the Fair Work Act 2009 and the specific provisions of the relevant enterprise agreement regarding consultation and redeployment.

The legal issues before the court involved the interpretation and application of the Fair Work Act 2009, specifically section 389, which pertains to genuine redundancies, and the enterprise agreement's consultation clause. The court had to determine whether DHL fulfilled its obligation to consult with Mr. Davison regarding the redundancy and whether the redeployment process it undertook was reasonable in the circumstances. Additionally, the court assessed whether the respondent had genuinely attempted to redeploy Mr. Davison to another suitable position within the organisation.

The Fair Work Commission found that DHL had not complied with the consultation clause in the enterprise agreement, as it did not adequately engage with Mr. Davison about the redundancy and potential redeployment options. The court also determined that the redeployment process was not reasonable, considering that Mr. Davison had only applied for one of the 33 available roles and was unsuccessful in that application. The extensive redeployment process undertaken by DHL was deemed sufficient, but the lack of meaningful engagement with Mr. Davison undermined the overall fairness of the dismissal. Consequently, the objection based on genuine redundancy was dismissed, and the proceedings were to be relisted for further consideration of the unfair dismissal claim.

The Fair Work Commission ordered that the proceedings be relisted on a date to be fixed, indicating that the case would proceed to determine whether Mr. Davison's dismissal was indeed unfair. This decision highlighted the importance of adhering to consultation requirements and ensuring that any redeployment efforts are reasonable and properly communicated to the affected employee.

Orders