Robert Page v Oz Metal Works Pty Ltd T/A Oz Metal

[2015] FWC 2553

[2015] FWC 2553

FAIR WORK COMMISSION

EX TEMPORE DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Robert Page
v
Oz Metal Works Pty Ltd T/A Oz Metal
(U2015/3493)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 13 APRIL 2015

Application for relief from unfair dismissal - Genuine Redundancy - Application Dismissed.

[1] The following is the unedited text of the extempore decision handed down in the hearing of this matter on 9 April 2015.

[2] In this case Mr Page made an application on 27 February 2015 alleging that his dismissal by Oz Metal on 9February 2015 was unfair. Specifically, Mr Page alleged that he had been dismissed because he failed to contact Oz Metal on 6 February 2015 to advise that he would not be attending work on that day.

[3] On the other hand, Oz Metal submitted that Mr Page had been made redundant as a result of a downturn in business. In its submissions and at the hearing of the application on 9 April 2015 Oz Metal provided sales figures which indicated a decline in sales of over 40% over the period 1 November 2014 to 30 January 2015 relative to the same period in 2013/2014.

[4] Mr McKeown, a Director of Oz Metal, and Mr Kane, the General Manager of Oz Metal, both gave evidence on behalf of Oz Metal. Mr Kane’s evidence was that on 9 February 2015 he advised Mr Page that he was being made redundant and that his dismissal was not related to his absence on 6 February 2015.

[5] Mr Page disputes this, though in response to a question from the Commission, he confirmed that Mr Kane had used the word redundant in advising him of his dismissal. However, Mr Page submits that Mr Kane stated that his dismissal was because he did not call to advise of his absence on 6 February 2015.

[6] On balance, I prefer Mr Kane’s version of the discussion with Mr Page on 9 February 2015 - particularly in light of Mr Page’s confirmation that Mr Kane did mention that he was being made redundant in that discussion.

[7] Section 384 of the Fair Work Act 2009 (the Act) deals with the meaning of genuine redundancy. The evidence in this case demonstrates a downturn in Oz Metal business. Further, it was not disputed that redundancies had previously occurred at Oz Metal in late 2014. Against that background, I am satisfied that Oz Metal no longer required Mr Page’s job to be performed by anyone because of changes in its operational requirements, as per s.389 (1) (a) of the Act. In view of the business environment Oz Metal was operating in, I am satisfied that there were no scope to redeploy Mr Page elsewhere within the business, as per s.389 (2) of the Act.

[8] At the hearing, Mr McKeown acknowledged that no consultation had occurred with employees regarding redundancies in February 2015 as required by the Manufacturing and Associated Industries and Occupations Award 2010. This is inconsistent with s.389 (1) (6) of the Act.

[9] However, the question that flows from this is whether consultation would have averted the need for Mr Page’s redundancy. Based on the material before the Commission going to the business environment Oz Metal was operating in, I do not think it would have.

[10] In Maswan V Escada Textilvertrieb T/A Escada 1 (Escada) Vice President Watson found the failure to consult did not render the dismissal unfair. More particularly, Watson VP stated:

“[39] In my view a decision to dismiss on account of redundancy will only be harsh, unjust or unreasonable if the rationale for the decision is seriously undermined or if there is a serious error in procedure such that renders the termination unfair in the circumstances ... The failure to consult is not a trivial matter. But as it is clear that consultation was highly unlikely to have negated the operational reasons for the dismissal or lead to any other substantive change, I do not believe that the failure to consult prior to the date of termination rendered the dismissal unfair. Given the evidence in relation to the operational need to restructure, I am of the view that it is likely that Mr Maswan would have been dismissed in any event, even if timely consultation had occurred.”

[11] Drawing on the above analysis and the decision in Escada, I am satisfied that Mr Page’s dismissal was a case of genuine redundancy.

[12] Accordingly, Mr Page was not unfairly dismissed as per s.385 of the Act and his application is dismissed. An order to the effect will be issued in due course.

DEPUTY PRESIDENT

Appearances:

The Applicant on his own behalf.

Mr Damian McKeown for the Respondent.

Hearing details:

2015.

Canberra:

April 9.

 1   [2012] FWA 4239

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