Peter Gourdeas v Heyday 5 Pty Limited

[2021] FWC 2899

[2021] FWC 2899

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Peter Gourdeas
v
Heyday 5 Pty Limited
(U2020/6301)

DEPUTY PRESIDENT CROSS SYDNEY, 21 MAY 2021

Application for an unfair dismissal remedy.

BACKGROUND

[1] On 16 November 2020, I made a decision, 1 in which I found that Mr Peter Gourdeas (the Applicant) had been unfairly dismissed from his employment with Heyday 5 Pty Limited (the Respondent). In that decision I determined that the dismissal of the Applicant was not a genuine redundancy, that his dismissal was harsh, unjust or unreasonable, and that the appropriate remedy was three weeks compensation in the amount of $5,987.76 gross plus superannuation.

[2] The Applicant appealed my decision. The appeal grounds impugned only my consideration of s.392(2)(c) of the Fair Work Act 2009 (Cth) (the Act). 2 On 2 February 2021, a Full Bench of the Fair Work Commission (the Full Bench) granted the Applicant permission to appeal and upheld the appeal.3 The application was remitted to me for reconsideration of the appropriate remedy.

[3] On 15 February 2021, I issued directions for the re-hearing in relation to remedy (the Directions). The first four of the Directions were as follows:

1. The Respondent (Heyday 5 Pty Ltd) is directed to comply with the Notice to Produce filed on 7 September 2020 by no later than 4:00pm 17 February 2021.

2. The Respondent is directed to file with the Fair Work Commission, and serve on the Applicant, an outline of submissions, witness statements and other documentary material the Respondent intends to rely on in this matter by no later than 4.00pm on 24 February 2021.

3. The Applicant (Mr Peter Gourdeas) is directed to file with the Fair Work Commission, and serve on the Respondent, an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in this matter by no later than 4.00pm on 3 March 2021.

4. The Respondent is directed to file with the Fair Work Commission, and serve on the Applicant, any witness statements and other documentary material in reply to the Applicant’s witness statements and documents by no later than 4.00pm on 10 March 2021.

The matter was listed for re-hearing on 11 March 2021.

[4] Pursuant to the Directions, the following materials were filed:

(a) On 24 February 2021, the Respondent filed an Outline of Submissions (the Respondent’s Submission), and an Affidavit from Mr Daniel Vuk in accordance with the Directions. At that time the Respondent also “attached for the convenience of the Applicant” redacted documents produced to the Commission on 17 February 2021 (the Respondent’s Bundle of Documents) in response to a Form 52 Order for Production issued on 10 September 2020. Those documents consisted of a document described as “Employee Assessment Workbook” that apparently recorded the comparative assessment for redundancy of 231 of the Respondent’s employees (including the Applicant), a document described as “Employee Assessment Workbook Redundancies” that apparently recorded the comparative assessment of thirteen of the Respondent’s employees (including the Applicant) who were made redundant at the time of the Applicant, and a document described as “Emails re Employee Assessment Review” that consisted of emails between Mr Lavarato, Ms Minehan and Mr Eastthorpe of the Respondent between 8 and 9 April 2021 regarding selection of employees for redundancy.

(b) On 3 March 2021, The Applicant filed an Outline of Submissions (the Applicant’s Submission); and

(c) on 10 March 2021, the Respondent filed the Respondent’s Submission in Reply (the Respondent’s Reply).

The Issue

[5] The Full Bench observed as follows: 4

“The crux of the Appellant’s submissions is that the Deputy President found at [57] in the Decision, for various reasons, that the Appellant’s dismissal may not have occurred at all but then at [64], the Deputy President contradicts himself by finding that if the consultation period had been complied with, the Appellant would have been dismissed in three weeks. It is this contradiction that the Appellant points to as an illogical and irrational conclusion.”

And

“When the Deputy President’s comments at [57] in the Decision are properly considered, it cannot logically follow that the appropriate compensation amount could have been three weeks of remuneration (as found at [64]). Had the Deputy President concluded that the Appellant would have been dismissed regardless of whether there was a consultation period, then the conclusion he reached at [64] would have been open to him to make. However, in this case, the Deputy President found at [57] that the Appellant may not have been dismissed at all. This necessarily alters the factual circumstances under which the Deputy President’s assessment of appropriate compensation was to take place. The Deputy President has not shown the process of reasoning he used to traverse the gap between first finding that dismissal may not have occurred at all to finding that dismissal would have taken three weeks to occur. In the absence of this process of reasoning, it is apparent that the application of logic could not have resulted in the conclusion that the Deputy President arrived at.”

[6] The Respondent, at the directions, and the hearing of the matter on remittal, repeatedly submitted that the Full Bench erred by inserting the words “at all´ to my original conclusion that “the Appellant may not have been dismissed”. In the absence of the Respondent taking appropriate steps to challenge the decision of the Full Bench, the Respondent’s submissions on error must be rejected.

[7] The issue is the assessment, in light of the evidence both at first instance and on remittal, of the remuneration the Applicant would have received, or would have been likely to receive, if he had not been dismissed when he was on 17 April 2020.

Further Evidence and the Respondent’s Bundle of Documents

(a) Mr Vuk

[8] Mr Vuk, not being the decision maker, could only say that he had input into the Applicant’s performance appraisal. Mr Baker signed the Applicant’s performance review. Mr Vuk’s evidence regarding his conversation with the Applicant when the latter was being made redundant was that words to the following effect passed between them:

The Applicant	“Was this based on my performance appraisal?"
Mr Vuk	"My understanding is that it was multiple factors, although I’m not involved in these decisions"

[9] The Applicant was critical of the Respondent for leading only evidence from Mr Vuk pursuant to the Directions. The Applicant noted that the apparent decision maker, Mr Baker, was available, and Mr Lavorato, who had given evidence at first instance, was also available and even sat at the bar table during the hearing on remittal. Those criticisms were well founded. Notwithstanding the clear issue for determination, the Respondent studiously avoided assisting the Commission in its task. That was a forensic choice open to the Respondent, however the absence of probative evidence upon which the Commission may proceed is the result.

(b) Respondent’s Bundle of Documents

[10] In the hearing of the remittal the Respondent sought to tender the Respondent’s Bundle of Documents. The Applicant objected to that tender, noting it was belated, and it submitted partial, compliance with the Form 52 Order for Production issued on 10 September 2020. 5 The Applicant submitted that any such evidence should have been advanced through a witness who could attest to the provenance of the documents.

[11] The above criticisms were again well founded, however I admitted the Respondent’s Tender Bundle subject to weight and noting the Applicant’s objections. The Respondent’s Tender Bundle were business records relating apparently to the selections for redundancy of the Respondent’s employees in April 2020.

Submissions

(a) Respondent’s Submissions

[12] As noted above, the Respondent, impermissibly, asserted numerous errors on the part of the Full Bench. Those asserted errors included:

(a) The Respondent submitted:

“Paragraph 57 of the Original Decision begins by saying:

“I do not accept the Respondent’s submission that the dismissal would have occurred nonetheless. It is entirely possible that if proper consultation occurred, the applicant may not have been dismissed.”

At [15] of the Full Bench Decision the Full Bench says:

“The crux of the Appellant’s submissions is that the Deputy President found at [57] in the Decision for various reasons, that the Appellant’s dismissal may not have occurred at all.” (underlining added).

The Deputy President made no such finding.”

And further:

“Given the factual error di that sclosed in the sentence “However, in this case, the Deputy President found at [57] the Appellant may not have been dismissed at all.” the conclusion drawn by the Full Bench at paragraph [18] is flawed.”

[13] Regarding the actual issue before the Commission of the remuneration that the Applicant would have received or would have been likely to receive, the Respondent noted that the Applicant claimed before the Full Bench that nine weeks pay was the appropriate figure. The Respondent characterized that claim as the “outer limit” of what the Applicant would have earned had the dismissal not occurred.

[14] The Respondent urged what it described as “consistency with other decisions”, and referred to Butterfly Systems v Sergeev, 6 Charles Belchin v Ausie Professional Pest Control Service,7 and Michelle Sposito v Maori Chief Hotel.8

[15] I conclusion, the Respondent submitted:

“The Applicant was selected for redundancy from a pool of similarly engaged employees because of his “efforts, ability and time of service”

The errors disclosed in the Full Bench decision are significant to the point where the conclusion disclosed in paragraph [18] is unsafe.

The Applicant should be awarded compensation in an amount equal to or not significantly greater than three weeks pay.”

(b) Applicant’s Submission

[16] The Applicant, departing significantly from his position at first instance and before the Full Bench, urged compensation of 30 weeks pay, reduced to the statutory cap of 26 weeks.

[17] The Applicant noted the evidence before the Commission at first instance, particularly that there were six rounds of redundancies from 17 April 2020 to 24 June 2020. The Applicant’s role was selected for redundancy in the first round. In total there were 34 Grade 5 Electrician (Licenced) roles selected for redundancy. 9

[18] The Applicant noted that during the lead up to the first hearing, on 10 September 2020, the Commission issued an Order requiring the Respondent to produce Documents to the Commission. No documents were produced during the proceeding or at the hearing. The original decision concluded that Mr Lavorato confirmed there would be written records of decisions to make employee’s roles redundant, however no documents were produced in response to the Notice for Production. 10

[19] The Applicant noted that at first instance I concluded: 11

“I do not accept the Respondent’s submission that the dismissal would have occurred nonetheless. It is entirely possible that if proper consultation occurred, the Applicant may not have been dismissed. His selection to be one of the six made redundant was based on the Employee Assessment. He may have been successful in convincing the Respondent that the Employee Assessment was partially or wholly erroneous. As to whether such a result was probable cannot be determined due to complete failure of the Respondent to comply with the Notice to Produce.”

[20] The Applicant submitted that nothing in the evidence of Mr Vuk now advanced by the Respondent provides a proper basis for the Commission to depart from the conclusions it reached in the decision below. Mr Vuk was not the decision maker, and his evidence does not provide a proper foundation for any positive finding as to the likely length of the Applicant’s employment.

[21] The also submitted that what it described as the “heavily redacted” Respondent’s Bundle of Documents should not be admitted as evidence. Given the level of redaction, the Applicant submitted he was deprived of a fair opportunity to examine and make submissions about those documents.

[22] In considering the compensation to be awarded to the Applicant, the Applicant submitted there is no positive basis for the Commission to conclude that the Applicant would have been terminated in any event either three weeks after the date of termination, or at any time. The evidence of the Respondent, despite having been given two opportunities, fails to provide a basis for reaching any conclusion that in the period to the date of the hearing, the Applicant’s employment would have been terminated. The Applicant’s losses are therefore ongoing, and exceed the statutory cap. In those circumstances, the Commission would be satisfied it is appropriate to award the maximum compensation available, being 26 weeks pay.

[23] The Applicant submitted that the Respondent’s submission that the Applicant be paid three weeks compensation would be rejected. The Respondent failed to provide an evidential basis to support the conclusion that such amount is appropriate. To accept the Respondent’s submission would involve, in effect, an endorsement of the deliberate steps the Respondent took to avoid a forensic assessment of its decision-making process.

(c) Respondent’s Reply

[24] The Respondent noted the expansion of the Applicant’s compensation from that advanced at first instance and on appeal, to compensation of 30 weeks pay, reduced to the statutory cap of 26 weeks, and noted the parts of the decision at first instance that found a valid reason for dismissal.

[25] Regarding the proper amount of compensation, the Respondent repeated its criticism of the Full Bench, distinguished the decisions relied upon by the Applicant, and maintained its submission that the appropriate remedy wis three weeks remuneration.

Consideration

[26] The remittal hearing presented the Respondent with the ability to present evidence to the Commission regarding how the Applicant would have been treated by the Respondent in the major changes occurring. Unfortunately, the Respondent failed to lead any evidence of any actual decision maker. Instead, the Respondent relied upon three documents (the Respondent’s Bundle of Documents), the importance and understanding of which had to be divined in the absence of cogent evidence.

[27] The evidence now before the Commission, when considered through the prism of the Full Bench decision, does not support the original conclusion that the remuneration the Applicant would have received, or would have been likely to receive, if he had not been dismissed when he was on 17 April 2020, was a further three weeks pay.

[28] The evidence of Mr Lavorato regarding the redundancies that occurred has not been challenged or disturbed at any stage of the litigation. At first instance, I observed as follows:

“[17] Due to the significant impacts of the COVID 19 pandemic the Respondent had a number of positions that were no longer required. In his statement Mr Lavorato gave detailed evidence, which I accept, regarding the dates and numbers of position reductions. Those reductions ,which were across all projects of the Respondent, were as follows:

(a) Between November 2019 and 9 April 2020, the Respondent returned:

(i) 128 labour hire employees back to their employers; and

(ii) 35 Group Training apprentices back to their Group Training Organisations.

(b) In the first round of redundancies, which occurred on 17 April 2020, being the round in which Mr. Gourdeas was dismissed, the Respondent determined that it needed to make the following positions redundant:

(i) 8 x Electrical Workers Grade 5 (Licensed Electricians);

(ii) 4 x Electrical Workers Grade 4A (Unlicensed Electrician); and

(iii) 1 x Electrical Worker Grade TA (Trades Assistant).

(c) The second round of redundancies took place on 28 April 2020, whereby the Respondent made the following positions redundant:

(i) 1 x Foreman;

(ii) 1 x Electrical Worker Grade 5 (Licensed Electrician); and

(iii) 1 x Electrical Worker Grade 4A (Unlicensed Electrician).

(d) The third round of redundancies took place on 8 May 2020, whereby the Respondent made the following positions redundant:

(i) 1 x Electrical Worker Grade 5 - Leading Hand; and

(ii) 3 x Electrical Workers Grade 5 (Licensed Electrician).

(e) The fourth round of redundancies took place on 15 May 2020, whereby the Respondent made the following positions redundant:

(i) 1 x Electrical Worker Grade 5 - Leading Hand; and

(ii) 2 x Electrical Workers Grade 5 (Licensed Electrician).

(f) The fifth round of redundancies took place on 29 May 2020, whereby the Respondent made the following positions redundant:

(i) 1 x Project Manager;

(ii) 3 x Electrical Workers Grade 5 (Licensed Electrician); and

(iii) 2 x Electrical Workers Grade 4A (Unlicensed Electrician).

(g) The sixth round of redundancies took place on 22, 23 and 24 June 2020, whereby the Respondent made the following positions redundant:

(i) 1 x Electrical Worker Grade 5 - Leading Hand; and

(ii) 18 x Electrical Workers Grade 5 (Licensed Electrician); and

(iii) 5 x Electrical Workers Grade 4A (Unlicensed Electrician); and

(iv) 1 x Electrical Worker Grade TA (Trades Assistant).

(h) Additionally, on 15 and 30 July 2020 respectively a further two (2) redundancies took place, which were:

(i) 1 x Electrical Worker Grade TA (Trades Assistant); and

(ii) 1 x Electrical Estimator.”

[29] In the Respondent’s Bundle of Documents, a document described as “Employee Assessment Workbook Redundancies” recorded the comparative assessment of the thirteen of the Respondent’s employees (including the Applicant) who were made redundant at the time of the Applicant on 17 April 2021. The “Employee Assessment Workbook,” however, recorded the comparative assessment of 231 of the Respondent’s employees (including the Applicant) as at 8 April 2021.

[30] It is clear from the evidence of Mr Lavorato that, while eight Grade 5 Licensed Electricians (the Applicant’s Grade) were made redundant on 17 April 2020, only nine further Grade 5 Licensed Electricians were made redundant over the next three rounds of redundancy. On the sixth round of redundancies, however, 18 Grade 5 Licensed Electricians were made redundant.

[31] The contemporaneous “Employee Assessment Workbook” did not rate the Applicant well in comparison to his co-workers. While I am prepared to accept, in the absence of any cogent evidence from the Respondent, that the Applicant’s employment would not have ceased in the second, third, fourth or fifth rounds of redundancies, I consider that the Applicant’s employment would have ceased in the large cohort of Grade 5 Licensed Electricians made redundant the sixth round of redundancies on 22, 23 and 24 June 2020. That was approximately nine weeks after 17 April 2020.

[32] The authorities relied upon by the Respondent turned on their own facts, and were irrelevant to the particular considerations before the Commission in this matter.

Compensation

[33] The matter has been remitted for re-determination of remedy. Reinstatement was no longer sought. The criteria relevant to the deciding of the amount of compensation are set out in s.392(2). That section provides:

“392 Remedy—compensation

…

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

I address below those criteria in the customary order of consideration. 12

(i) Remuneration that would have been received (s.392(2)(c))

[34] As found above, I am of the view that the remuneration the Applicant would have received, or would have been likely to receive, if he had not been dismissed would have been another nine weeks’ remuneration in the amount of $17,963.37.

(ii) Remuneration earned (s.392(2)(e))

The only remuneration earned by the Applicant since his dismissal was his one weeks notice. I do not deduct that from the amount ordered.

(iii) Income reasonably likely to be earned (s.392(2)(f))

[35] This is not a relevant consideration in this matter.

(iv) Other matters (s.392(2)(g))

[36] There are no other matters that I consider are relevant to take into account in the determination of an amount of compensation in lieu of reinstatement for the Applicant.

(v) Viability (s.392(2)(a))

[37] No submission was made on behalf of the Respondent that any particular amount of compensation would affect the viability of the Respondent’s enterprise.

(vi) Length of service (s.392(2)(b))

[38] The Applicant had only seven and a half months service with the Respondent. Such a period of service does not justify an adjustment to the amount of compensation.

(vii) Mitigation efforts (s.392(2)(d))

[39] I continue to accept that the Applicant has made reasonable efforts to mitigate the loss suffered by him because of his dismissal. His mitigation efforts do not provide a basis for reducing the amount of compensation.

(viii) Misconduct (s.392(3))

[40] Misconduct did not contribute to the Respondent’s decision to dismiss the Applicant.

(xi) Compensation cap (s.392(5))

[41] The amount of $17,963.37 gross plus superannuation.is less than the compensation cap in s.392(5) of the FW Act for the Applicant.

Conclusion as to Remedy

[42] I am satisfied an order for the payment of compensation of $17,963.37 gross plus superannuation, less taxation as required by law, by the Respondent to the Applicant in lieu of reinstatement is appropriate in all the circumstances of the case. It accords a fair go all round to both the Respondent to the Applicant. An order to this effect is attached.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR730017>

 1   [2020] FWC 6132.

 2   [2021] FWCFB 494. At [7].

 3   [2021] FWCFB 494.

 4   [2021] FWCFB 494, at [15] and [18].

 5   [2020] FWC 6132, at [19].

 6   [2021] FWCFB 18.

 7   [2021] FWC 791

 8   [2021] FWC 200

 9   [2020] FWC 6132 at [17].

 10 Ibid, at [43].

 11 Ibid, at [57].

 12   Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21.