Sam Cossar v Laminex Group Pty Limited
[2025] FWC 1074
•16 APRIL 2025
| [2025] FWC 1074 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Sam Cossar
v
Laminex Group Pty Limited
(U2024/10471)
| COMMISSIONER PERICA | MELBOURNE, 16 APRIL 2025 |
Application for an unfair dismissal remedy
On 5 September 2024, Mr. Sam Cossar made an application under s 394 seeking reinstatement “with direct employment into the completions/production manager role” or compensation. He alleges he has been unfairly dismissed from his employment with Laminex Group Pty Limited (Laminex).
The matter was heard on 3 December 2024. Mr. Cossar represented himself and gave evidence. Mr. Matthew Jansa, who is a Senior People & Performance Business Partner at Laminex, represented it. Two employees of Laminex, Mr. Andrew Pisano, the National Sales Manager, and Ms. Christy Charlton, People and Performance Business Partner, gave evidence for it at the hearing.
For the reasons I set out below, I am satisfied Mr. Cossar’s dismissal is a genuine redundancy. Mr. Cossar’s dismissal therefore cannot be an unfair dismissal and his claim cannot continue. I have therefore ordered that Mr. Cossar’s application be dismissed.
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 of this section must be satisfied. I am therefore required to consider whether Mr. Cossar was protected and whether he has been unfairly dismissed.
When is a person protected from unfair dismissal?
Section 382 of the Act provides that a person is protected from unfair dismissal, at a time if, at that time:
(c)the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(d)one or more of the following apply:
(i)a modern award covers the person;
(ii)an enterprise agreement applies to the person in relation to the employment;
(iii)the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
It was not contested Mr. Cossar was a person entitled to protection from unfair dismissal.
When has a person been unfairly dismissed?
Section 385 of the Act provides that a person has been unfairly dismissed if the Commission 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.
[Emphasis added.]
Genuine redundancy is a complete defence to an unfair dismissal application. If the dismissal was a case of genuine redundancy as defined in s 389, then the dismissal cannot be an unfair dismissal under s 385. I will outline the definition of genuine redundancy later in these reasons.
Laminex makes a jurisdictional objection to the application of Mr. Cossar that his dismissal was a genuine redundancy, and he therefore cannot claim he was unfairly dismissed by reason of s 385(d).
I will now set out the relevant facts to consider whether the dismissal was a genuine redundancy.
RELEVANT FACTS AND EVIDENCE
From January 2015 to November 2018, prior to his employment with Laminex, Mr. Cossar was employed by Freedom Kitchens as the Senior Area Sales Manager. In that position he was responsible for “signing off every kitchen desigd sold before it progressed to production”.[1]
On 15 June 2021, Mr. Cossar commenced employment with Laminex in the position of Designer as part of the Fletcher Building Group pursuant to a contract of employment executed by the parties on 9 June 2021.[2]
In the role of Designer, Mr. Cossar was based in Oakleigh and reported to the Branch Manager of Haven Kitchens (Haven) at that location.[3] He was engaged to design kitchens for Haven. Haven is a “sub brand” of Laminex formed to offer customers prefabricated kitchens that are ready to install.[4]
Promotion to Design Team Leader
On 20 November 2023, Mr. Cossar was promoted to the role of Design Team Leader. As the Design Team Leader, he reported directly to the general manager of Haven. The position description for that role, called a “Success Profile,” outlined the roles and responsibilities in that position as follows:
“• Lead the design team in all facets of the design process from customer to design completion.
· Design at least 50% of the designs generated from the Oakleigh showroom.
· Work closely with customers, internal and external stakeholders to develop innovative kitchen designs that enhance usability and style.
· Be the business “owner” of 2020, controlling all file upload and upkeep.
· Be a leader to all the designers in the team, leading by example and with support.
· Collaborate with the leadership and sales teams to develop our new strategy.
· Establish 15 minute “daily stand up” meeting rhythm with the designers.
· Establish robust reporting framework with key KPI’s (To be agreed upon)”[5]
The Success Profile goes on to describe detailed requirements for the role, which includes:
· Team Leadership: to “lead, mentor and inspire a team of designers and to foster a creative and collaborative work environment” and
· Project Management: “to oversee the design process from conception to completion, ensuring projects are delivered on time and with minimal errors”.[6]
Financial difficulties of Haven and Laminex and the decision to “restructure”
From around November 2023, Laminex and its sub brand Haven were getting into financial difficulty. Mr Pisano, the National Sales Manager, who took that position up in November 2023, gave evidence that Haven “had not been hitting their sales targets and were falling behind budget by 40 percent a month”.[7] Further, Haven was “making a loss of approximately $225,000 per month”.[8]
Mr Pisano also gave evidence that Laminex itself “faced challenging market conditions”, including:[9]
· There was an “overall market downturn” in the last financial year which “is expected to continue to decline” in the next financial year.
· Housing activity “has fallen to the lowest levels in 15 years and will continue to decline, which impacts on our sales”.
· National Sales is (sic.) down 8%, and Victorian sales are down by 10%”.
· Higher borrowing and build costs “have tempered new housing demand, which directly impacts upon the sale of our products”.
· “We have been facing rising operational costs such as fuel levy, packaging and transport and manufacturing costs”.
· “We have also experienced significant price pressure from our competitors and imports in the market”.
Decision to cease the employment of Mr. Cossar and the “restructure” of Haven
Mr. Pisano gave evidence that, in April 2024 in response to these challenging conditions, Haven began to consider “restructuring the business and making roles redundant.” As part of this consideration, “each functional business unit of Laminex including Haven was required to find operational efficiencies and reduce headcount”.[10] This headcount reduction included a decision to terminate the employment of Mr. Cossar:
“Sam’s role of Design Team Manager was no longer required as we simply did not have the sales or demand in Haven to justify the role. After a careful business review, it was deemed the design duties performed by the Design Team Manager could be performed by the remaining Designers. The organisational structure was changed so that I would lead the team of Designers.”[11]
Mr. Pisano attached a revised organisational chart to his statement which was a representation of the structure of Haven after Mr. Cossar’s employment ceased.[12] The chart is divided into two operational units: Trade and Operations and Consumer/Retail. At the head of Trade and Operations is Ms. Louise Hall who is designated as “General Manager of Sales”. She is the General Manager of Sales across the Laminex business. As a result of the organisational change, she was given the additional responsibility for the Haven business unit.[13] Mr. Pisano explained: “She's just absorbed the Haven business unit as a cost cutting [measure].”[14]
The new organisational chart lists several vacancies in the Consumer/Retail operational unit. They are “CX Manager”, “CX design consultant” and two full time “Designers.”[15] Mr. Pisano’s evidence was that the “roles marked vacant represent employees who have left the organization and have not been replaced”.[16]
Mr. Pisano’s evidence was that from April 2024, “7 positions including the design team manager, were made redundant.”[17] As well, “two employees engaged on fixed term contracts were not extended”[18] and “four other roles, vacated due to resignations, including the General Manager of Haven, were not replaced.”[19]
13 June 2024 “Business Update” and the closure of the Haven Thornbury site
One of the decisions made for “operational efficiencies and reduce headcount” included closing the Thornbury site of Haven.[20]
On 10 July 2024, a broadcast e-mail was sent to all Haven staff (including Mr. Cossar) from the General Manager of “Business Transformation”, Mr. Kristian Tennant. It stated (amongst other things) “Following our recent consolidation announcement, I wanted to share another business update: the closure of the Thornbury site.”[21]
The e-mail did not warn staff that further redundancies were likely. The only “restructuring and head count reduction” referred to in the e-mail was that “Dimi would not be returning” and that “Derek will be working from the Dandenong site”. The e-mail ended on an optimistic note: “Please don’t see this as a sign of retreat, Laminex and Fletcher Builder really believe in the future of Haven and have the upmost confidence in the future of the business.”[22]
Mr. Cossar gave oral evidence about his reaction to receiving this e-mail and a subsequent team meeting with the General Manager:
“… the Thornbury site was being closed and one of the girls, Demi, … the trade centre manager was made redundant. I recall that following week we sat down and had a meeting with the broader team to discuss what was going on, because everyone was a bit, I guess, shaken up by the whole situation. I recall that a team member asked Kristian Tennant, who was the GM, would there be anymore redundancies made, and he assured us a couple of times that no, there would be no more redundancies.”[23]
Mr. Cossar confirmed he attended the meeting with the General Manager and heard that exchange.
15 August 2024 – the text from Mr. Pisano
At 5:46PM on 15 August 2024, Mr. Pisano sent Mr. Cossar a text message which read, “Hey Sam have a good rest tonight! Are you planning on coming into work tomorrow. I’m planning on getting f2f [Face to Face] with the team”. Mr. Cossar responded, “I will be at Windsor”.[24]
Under cross examination, Mr. Pisano conceded when he sent this text, he was unaware Mr. Cossar would be made redundant on the following day. The reference to the F2F meeting was “relating to a different matter”.[25]
Morning of 16 August 2024 – the phone call between Mr. Pisano and Mr. Cossar
In his first witness statement Mr. Pisano gives evidence that on the morning of 16 August he rang Mr. Cossar:
“In the morning of 16 August 2024, I called Sam and advised him that I needed to meet with him that afternoon to discuss a restructure to the Haven business that would impact him. I followed up the phone conversation with a meeting invite to Sam, whereby I reiterated that I would meet with him at 2.30 pm face to face at the Haven Windsor site. Sam was also advised he was welcome to bring a support person to the meeting. Sam also was advised the meeting would also include Christy Charlton, the National People and Performance Manager, who would be attending via Microsoft Teams.”[26]
In his oral evidence, Mr. Pisano described this conversation as follows:
“The – the discussion was that I'd like to come and have a chat – a discussion with him around Haven business updates that – that have an impact on his role and that could he meet at 2.30 that afternoon to discuss it, and that Christy Charlton will be joining from MS Teams and that he's welcome to have a support person for those conversations.”[27]
Mr. Cossar had a different recollection of that conversation. His evidence was that there was no mention of Ms. Charlton’s involvement or the offer of a support person. His recollection of the phone call was:
“…the phone call in the morning, my recollection of the phone call was you called to touch base and say you were going to come in later today and, ‘I'll send you a meeting invite to catch up’.”[28]
The 16 August 2024 invitation to Mr. Cossar to meet for a “Haven business update[29]”
At 10:18 AM on 16 August 2024, Mr. Pisano sent an e-mail to Mr. Cossar. It contained a link to a virtual meeting through Microsoft Teams for 2:30 PM that afternoon. The text of that e-mail was: “Hi Sam, as per our discussion – I would like to meet with you this afternoon to discuss some Haven business updates. I will come to Windsor and meet you in person. Please note you are welcome to bring a support person.”[30]
Mr. Cossar’s reaction to receiving this e-mail was:
“[I] received that meeting invite and that was the first time I had seen the words 'support person' and also that Christy was going to be in it. The whole day I was just wondering what the business updates, thinking it would be a positive meeting. At no point did the thought of being terminated would be part of it.”[31]
Accounts of the “Haven Business Update” meeting at 2:30 PM on 16 August 2024
Mr. Cossar describes the meeting that occurred on 16 August 2024 in his witness statement:
“At approximately 2:30pm I attended the Termination Meeting. During the Termination Meeting, I was advised that my employment was terminated effectively immediately as my Role was surplus to requirements and no longer required. I was advised that I would be finishing that day. At the Termination Meeting, I didn’t have any questions for them. This was due to the shock of the reason for the meeting.”[32]
He also described it in his oral evidence:
“We started the meeting and we sat down. Christy dialled in through Teams. Andrew was there in person. We sat down and then Andrew started talking about that we were not making money we were wanting to. We need to restructure and that my role had been impacted and I was being made redundant. I only asked two questions of 'Was anyone else impacted?' I was told, 'No.' And, 'When would I be leaving and what am I getting paid out?' The meeting was over in five to 10 minutes.”[33]
Mr. Pisano gives a detailed account of the meeting in his statement.[34] He confirms that Mr. Cossar was offered and refused a support person and that he was happy to proceed without one. He goes on:
“During this meeting I explained to Sam that we have not been hitting our sales targets at Haven and we are falling behind budget and Haven had been making a loss. Moreover, Christy reiterated to Sam that Laminex as a whole business has been facing challenging market conditions. It was explained to Sam that in response to these market and business challenges, Laminex and Haven began cost out initiatives by restructuring the business and making roles redundant, and that his role would be impacted by way of redundancy.
Christy explained to Sam and confirmed with him that his employment would be ending effective 16 August 2024 by way of redundancy, and he would be paid out his entitlements, including severance and notice period.
… Sam was given an opportunity to respond, ask questions and raise any queries he had. Sam was also encouraged to review a list of vacancies, that he might like to be redeployed into however he did not identify any roles that he wished to be redeployed into.
… Sam asked … whether anyone else at Haven had been impacted by way of redundancy, and it was explained to Sam that other roles within Haven and Laminex would be impacted by way of redundancy as a result of the restructure. He also asked for the exact figure of his redundancy payout which was provided to him via email at the end of the meeting.”
Ms. Christy Charlton, a People and Performance Partner at Haven, gave evidence in the proceeding. It was her responsibility to “manage the discussion with Sam about the redundancy…”[35] She attended the redundancy meeting and broadly corroborates the account of Mr. Pisano.[36] She gives more detail concerning the discussion concerning the “list of vacancies” that Mr. Cossar was given of jobs across the Fletcher Group:
“I provided Sam with a list of approximately 100 active vacancies within Laminex and other associated entities and I encouraged Sam to review the list and identify any roles of interest to him…Sam did not identify any roles that he wished to be redeployed into.”[37]
Ms. Charlton attached the list of one hundred vacancies across the Fletcher Group which was handed to Mr. Cossar at the redundancy meeting.[38] It lists available jobs across Australia. It included 23 jobs in rural and metropolitan Victoria. The jobs available in the suburbs of Melbourne included jobs which were unlike Mr. Cossar’s job at Haven including two “Trade Counter Sales/Driver” positions, a “Maintenance Fitter” and “Process Operator.” It also included retail type jobs including an “Architectural Business Development Manager” in Dandenong South, and an “Area Sales Manager” in Traralgon.
Mr. Cossar confirmed he did not identify any roles that he wished to take up. He explained:
“…None of them looked appealing to what I was doing. I've done design and I'm an industrial designer, so design and working things out and problem solving's really what I love. Leading a team's what I love and looking through those roles, nothing suited those passions. It did feel, I guess, a bit – I didn't feel like I wanted to look through and find – like, find a new job within this business as I'd just been given – been terminated. So, sort of, that relationship felt a bit awkward if I was going to try and come back.[39]”
16 August 2024 Termination letter and “redundancy” pay
Following this meeting, Mr. Cossar was sent a letter dated 16 August 2024 headed “Termination of your employment by reason of redundancy”. It stated:[40]
· Laminex had made attempts to find suitable alternative employment in a comparable position and no suitable positions are available.
· Mr. Cossar’s position would terminate for reasons of redundancy.
· The notice of redundancy was effective from that day.
Mr. Cossar was also given an estimate of redundancy pay which, including accrued entitlements, amounted to a gross amount of $32,905.35. This included four weeks in lieu of notice and 10.33 weeks for “severance pay.”[41]
The post-employment job advertisements.
On 16 August 2024, on the same day Mr. Cossar’s employment was terminated, a role was advertised on SEEK which was time stamped at 3:00 PM.[42] It was for the position of “Completions Manager” with Laminex. The generic description at the top of the advertisement noted that it was to be based at Dandenong and South Melbourne, it was in the “Carpentry & Cabinet Making (Trades & Services)” industry and would be full time.[43]
The listed “Requirements” for the job were:
“• Kitchen design experience, including fitting and installation techniques
· A creative eye for colours, features, and functionality
· Practical experience in spatial planning and the use of storage products
· Cabinet making and joinery experience, with an appreciation for craftsmanship
· On-site experience with accurate measuring and knowledge of working around kitchen services
· Proficiency in 2D and 3D design software
· Thorough knowledge of kitchen industry legislation, standards, and compliance
· Exceptional product knowledge and a willingness to share that expertise with others
· Professionalism and integrity in dealing with internal and external stakeholders”
The listed “Key Responsibilities” for the job were:
“• Collaboration with Designers: Work closely with our design team to troubleshoot and resolve any challenges that arise during the design and installation process.
· On-Site Support: Provide hands-on troubleshooting support on-site, ensuring that any issues are swiftly and effectively addressed.
· Technical Expertise: Utilize your background in cabinet making and joinery to support the design and installation teams with practical, real-world solutions.
· Design and Drafting: Bring your design skills to the forefront with experience in both 2D and 3D software, ensuring accuracy and creativity in every project.
· Kitchen Installation: Leverage your knowledge of kitchen fitting and installation techniques, including the challenges that come with them.
· Spatial Planning: Apply your practical skills to design and optimize the use of storage and ancillary products within kitchen spaces.
· Compliance and Standards: Ensure that all designs and installations adhere to industry legislation, standards, and compliance requirements.
· Product Knowledge: Become an authority on our product range, including sinks, taps, appliances, and benchtops, and play a key role in onboarding new team members.”[44]
According to the evidence of Mr. Cossar, the advertisement for the job of “Completions Manager” was taken down and an identical advertisement was put up on SEEK except with a different job title, this time as “Production Manager”.[45] The listed “Requirements” and “Key Responsibilities” for the advertisement for Production Manager was the same as those advertised for the Completions Manager Role.[46]
CONTENDING ARGUMENTS ON GENUINE REDUNDACNY
Arguments of Mr. Cossar
Mr. Cossar contends his redundancy cannot be genuine because he could have been redeployed into the job(s) which was advertised on the very day he was terminated. He argues the “Key Responsibilities” in the advertised jobs were “substantially the same” as he performed in the role of Design Team Leader.[47] He supports this argument with a commentary on each of the advertised key responsibilities as follows:
“ • Collaboration with Designers: I conducted daily calls with the design team for any issues that needed to be solved that day at all stages of the process, from design to on-site installation.
· On-Site Support: I would attend sites where there was an issue to assist in solving the issue with the client and/or installer.
· Technical Expertise: I have worked in the kitchen design industry for 13 years. I have a strong knowledge of joinery and provided advice to installers. I signed off on install drawings before they were delivered to the client.
· Design and Drafting: I was, by proxy, the software manager for the 2020 design drawing program. I trained new team members, upskilled existing team members and updated the catalogue when new projects were implemented
· Kitchen Installation:
· Spatial Planning: An inherent requirement of my Role which I performed daily.
· Compliance and Standards: My experience in the industry enables me to acutely understand the nuances of kitchen renovations and implement designs accordingly.
· Product Knowledge: I was responsible for the onboarding of new team members and was considered the expert on the product range available”[48].
Mr. Cossar also argues he could have been deployed into the vacant Consumer/ Retail positions on the post restructure organisational chart which was attached to Mr. Pisano’s witness statement.[49] Mr. Cossar’s curriculum vitae is in evidence. It shows that he “spent eight years in the consumer side of the joinery industry”.[50] According to Mr. Cossar, “it was available to [Laminex] to redeploy him into the new organisations chart with the years of experience in that sector as well as all the knowledge I had in the current business.”[51]
Arguments of Laminex
Mr. Pisano gave evidence the advertised Completions Manager role was a replacement for a role known internally at Laminex as “Installations Manger”. Mr. Pisano explains “the role was advertised as Completions Manager to cast a wider net to attract more applicants and candidates to the role.”
While Mr. Cossar was employed at Haven, the role of installations manager was held by Mr. Paul Bikouvarakis, who resigned from employment with Haven on 21 August 2024.[52] Mr. Pisano attached Mr. Bikouvarakis curriculum vitae which shows he was a tradesperson, a cabinet maker who had “30 years’ experience in cabinet making”.[53]
Mr. Pisano gave evidence about the role of the Installations Manager:[54]
“The Installations Manager role required extensive cabinet making skills. These were skills that the incumbent to the role, Paul, possessed.
The Completions Manager role focuses on the following key responsibilities:
· Managing existing kitchen installer customer base to providing training to installers for kitchen fitting and joinery.
· Provides technical and customer support for installer customer base.
· On site support in installing through to finishing stage, and problem solving when installations have challenges.
· Cabinet making, joinery experience are critical to the role.
· Spatial planning and compliance with installation standards and legislation.
It is the installations manager’s role to identify issues with the kitchen designs, prior to the design going to a customer, to minimise the risk of any errors in installations. This is a key feature of the role given that a requirement for the Completions Manager is to have a trade qualification.”
Mr. Pisano attached the “Success Profile” for the role of Installations Manager.[55] It states “the installations manager is primarily responsible for managing internal and external installations ensuring customer project requirements are met…” Under the “experience” heading required for persons in the Installations Manager role includes:
“• Cabinet making and joinery experience with an appreciation for craftsmanship
· On site experience with accurate measuring and knowledge working arounds kitchen services.
· Thorough knowledge of kitchen industry; legislation and standards, and compliance.
· Forklift Licence.
· Trade Background”.
Mr. Cossar was cross examined on these and other of the listed “experience” requirements in the success profile for installations manager. He conceded he did not have “cabinet making and joinery experience”[56] or a “trade background”[57] but he had some experience of accurate measuring and knowledge of working around kitchen services[58] and of “kitchen industry legislation, standards and compliance”.[59]
Mr. Cossar claims the Installation Managers success profile filed in the proceeding[60] has the same key responsibilities as the advertised role of Completions Manager and “this role had substantially the same key performance indicators that I could have performed”.[61]
Mr. Jansa, for Laminex, cross examined Mr. Cossar on the similar “Key responsibilities” of the Design Team Manager position and the Installation Manager position:[62]
“JANSA: You're suggesting that you could be redeployed into that role. I put to you, Mr Cossar, that if we go to the installation manager success profile, the key responsibilities are just one small component of the entire role, and consequently, I guess the question I put to you is: do the key responsibilities address the actual tasks that the installation manager was required to perform?
COSSAR: No.
JANSA: I want to direct you to the design team manager's success profile, page 143 of the court book. Would you agree that the success profile for this role has a heavy emphasis on design work?
COSSAR: Yep.
…
JANSA: Does the success profile of the design team manager role include any duties that would be considered installation?
COSSAR: No.”
Mr. Pisano set out what he says are the differences between the Design Team Manager position and the Completions Manager position in his witness statement:[63]
“…The Completions Manager is focused in the area of kitchen installations. Sam’s role of Design Team Manager did not have any kitchen installations or kitchen installer responsibilities which is the core responsibility of the Completions Manager role.
I estimate that 90% of the Completions Manager role is to support our kitchen installer base. This was not a duty or responsibility of the Designer Team Manager.
The Completions Manager role requires a trade qualification. In order to obtain a trade qualification you need to attend a TAFE course, complete an apprenticeship via on the job training under the supervision of a qualified cabinet maker, then apply for a trade paper. This process can take up to 4 years.
Sam did not have any trade qualifications in the area of cabinet making which is a key requirement for the completions manager role and it would not be reasonable to wait 4-5 years for Sam to obtain the qualification required to be considered for the Completions Manager role.”
Mr. Pisano states the successful candidate for the role of Completions Manager was Mr. Steve Squires.[64] He commenced employment with Laminex on 1 October 2024. Mr. Pisano states that Mr. Squires has: “extensive cabinet making experience and is trade qualified with 20 years’ experience in cabinet making and kitchen installations”.[65]
CONSIDERATION OF THE GENUINE REDUNDANCY QUESTION.
What is a genuine redundancy?
Section 389 of the Act defines “genuine redundancy” as follows:
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.
Required steps to determine a “genuine redundancy” under s 389
Section 389 requires a series of “stepped findings”:[66]
· Firstly, whether Mr. Cossar’s job is redundant.
· Secondly, whether the employer complied with any applicable consultation obligations under a modern award or agreement; and
· Thirdly, whether it would have been reasonable to redeploy Mr. Cossar in another role.
There must be an appropriate evidentiary basis for these stepped findings and the relevant facts are usually within the knowledge of the employer rather than the dismissed employee.[67]
Step One: Was Mr. Cossar’s “job” made redundant?
Section 389(1)(a) of the Act refers to an “employer making a decision about an employee’s “job”. A job involves a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employee’s organisation, to a particular employee.
The test is not whether the functions or duties themselves continue, but whether the “job” itself survives. What is said to be critical for the purpose of identifying a redundancy is whether the employee has any duties left to discharge after the re-organisation. If there is no longer any function or duty to be performed by that employee, his or her “job” is redundant.
Mr. Cossar did not contest his role as Design Team Leader, which involved leading the design team and overseeing the design process, was no longer performed by anyone. Mr. Pisano’s evidence that he “would lead the team of designers,”[68] and the “design duties performed by the Design Team Leader could be performed by the remaining designers”[69] was not contested. Nor was it contested that the “duties and responsibilities of the Design Team Leader role” was “restructured to other roles in the business”.[70] The fact that some aspects of Mr. Cossar’s job are still being performed by other employees does not deter a conclusion that the job itself is no longer being performed by anyone as required by 389(1)(a).[71]
I accept the evidence of the challenging market conditions which lead to the restructuring of the Haven business. This included:
· Haven was incurring a loss of about $225,000 a month.
· An ongoing market downturn.
· A fall in housing activity to the lowest level in 15 years.
· Higher borrowing and build costs.
· A fall in Victorian Sales by 10%.[72]
I therefore find, consistent with s 389(1)(a), Laminex had decided that it no longer required Mr. Cossar’s job as the Design Team Leader to be performed by anyone. The reason the Design Team Leader job was no longer required was due to sound operational reasons related to the downturn in the domestic housing market and the consequential lower demand for prefabricated kitchens.
Step Two: Compliance with consultation requirements
Ms. Charlton, the National People and Performance Manager at Laminex, gave evidence that “Mr. Cossar’s position of Design Team leader was not covered by a modern award or enterprise agreement” and that “she was satisfied that there was no obligation to consult [Mr. Cossar] about the redundancy”.[73] Mr. Cossar did not contest this evidence.
I have uncontested evidence of a Senior Human Resource Manager that Mr. Cossar’s employment was not covered by a Modern Award or Agreement. I therefore find there was no obligation on Laminex to consult on the redundancy under s 389(1)(b).
Step Three: Reasonableness to redeploy
Mr. Cossar’s argument rests on his assertion that it would have been reasonable in all the circumstances that he be redeployed either to the advertised completions manager position or in one of the vacant consumer retail positions in the post restructure organisational chart which was filed in the proceeding.
The Fletcher Group jobs shown to him in the termination meeting
Mr. Cossar was not attracted to any of the 100 or so jobs available in the Fletcher Group across Australia which were shown to him (for the first time and without notice) in the termination meeting.
His evidence was “None of them looked appealing to what I was doing. I've done design and I'm an industrial designer, so design and working things out and problem solving's really what I love. Leading a team's what I love and looking through those roles, nothing suited those passions.”[74]
Given Mr. Cossar himself was not attracted to the positions because they did not involve industrial design and leading a team, it was not reasonable for Laminex to redeploy him in any of those roles.
The position of Completions Manager/Installation Manager
It is a regrettable recent phenomenon that buzzwords and neologisms replace words with discernible meaning in job advertisements and “success profiles”. This practice often makes it difficult to discern what the actual job entails.
I accept Mr. Cossar’s argument there are similarities between the enumerated key responsibilities of his former role as Design Team Leader and the list of key responsibilities in the job advertisement for the Completion Manager. I also accept there was some commonality between his job as Design Team Leader, as it was performed, and the listed key responsibilities for the advertised Completions Manager role. Both the Design Team Leader position and the Completions Manager position have design components including collaboration with designers, spatial planning and both require a detailed knowledge of the Haven products.
I accept the evidence of Laminex that the position of completions manager that was advertised was to replace the installation manager rather than the Design Team Leader. Both SEEK advertisements were advertised as involving “carpentry and cabinet making (Trades and Services)”.[75] The role of installation manager was focused on responsibility for installations rather than design. It was as pivotal point of difference between the Design Team Leader job and the Installation Manager job that it required a “trade qualifications” and “cabinet making and joinery experience”.
The previous holder of the installation manager position had a trade qualification and “30 years’ experience in cabinet making”.[76] Mr. Steve Squires, who eventually took up the Completions Manager job well after Mr. Cossar had ceased working at Laminex, has a trade qualification in cabinet making and “20 years’ experience in cabinet making and kitchen installation” according to Mr. Pisano.
The Completions Manager/Installation Manager has an installation rather than design focus. It requires both a cabinet making trade qualification as well as experience in cabinet making. Mr. Cossar does not possess the relevant trade qualification or experience. It is well settled that qualifications required to perform a job and the employee’s skills, qualifications and experience can be part of an assessment of whether redeployment could be considered reasonable.[77]
In all the circumstances, given the required trade qualifications and cabinet making experience for the job of Completions Manager/Installations Manager, it was not reasonable to redeploy Mr. Cossar into that position in all the circumstances that existed at the time of his dismissal.
Vacant customer Consumer/Retail positions in the post restructure organisational chart
Mr. Cossar argues it was reasonable for him to be redeployed into one of the vacant Consumer/Retail positions in the new organisational chart because he has a long history in the “consumer side of joinery”. The vacant Consumer/ Retail positions on the organisational chart were: CX Manager, CX design consultant, and two full time designers.
The evidence Mr. Pisano gave in relation to the vacant jobs was “The roles marked vacant in the organisation structure represent employees that have subsequently left the organisation since Sam’s redundancy on 16 August 2024 and have not been replaced”.[78] Those positions were not vacant at the time Mr. Cossar was dismissed.
The incumbents in those roles resigned after Mr. Cossar’s dismissal and were not replaced. Laminex relied on attrition by resignation in the now vacant jobs to further reduce headcount. There is a real question whether at the time of his termination any of these jobs would continue for long after Mr. Cossar was dismissed. In any event, at the time of his dismissal, those vacant positions were occupied by other employees who resigned after Mr. Cossar’s dismissal. It follows that it was not possible at the date of his dismissal to deploy Mr. Cossar into one of those jobs.
I find that in all the circumstances, at the time of his termination, it was not reasonable to redeploy Mr. Cossar into any of the vacant consumer/retail jobs which continued to be occupied at the time of his dismissal.
CONCLUSION AND DISPOSITION
For the above reasons, I find that Mr. Cossar’s dismissal was a case of genuine redundancy because:
· Under 389(1)(a), Laminex no longer required his job as a Design Team Leader to be performed by anyone because of changes in operational requirements related to the domestic housing market and sales of Haven kitchen products.
· Under 389(1)(b), there was no obligation arising from any award or enterprise agreement that applied to Mr. Cossar’s employment with Laminex.
· Under 389(2), it would not have been reasonable for Mr. Cossar to be redeployed either in the available jobs within the broader Fletcher Group; the position of Completions Manager/Installations Manager; or any of the vacant Consumer/ Retail positions on the restructured organisational chart.
I am therefore satisfied that Mr. Cossar’s dismissal is a genuine redundancy as defined in s389. Mr. Cossar’s dismissal cannot be an unfair dismissal and Mr. Cossar’s claim cannot continue. I have separately ordered that Mr. Cossar’s application is dismissed.[79]
SUGGESTION ON FUTURE REDUNDANCY PROCESSES
I have found the dismissal of Mr. Cossar was a case of genuine redundancy and I have dismissed Mr. Cossar’s application on that basis. However, the process used to bring about the redundancy of Mr. Cossar does not meet the level expected of a large employer with access to senior human resource practitioners. I therefore make the following suggestions concerning future redundancies:
(a)Mr. Cossar or the rest of the staff were not adequately informed of the danger to their jobs or the operational difficulties that Haven was experiencing. Employees should be kept informed of these matters.
(b)The use of a phrase like ‘Haven Business Update” to notify an employee of an impending termination meeting is not helpful. The employee is effectively given no notice their job is in peril. It is unsurprising Mr. Cossar refused an offer of a support person when he was attending a meeting about such a banal subject matter as a “Haven Business Update”.
(c)I question the utility of handing over a list of one hundred jobs all over Australia, with no notice, at a meeting where the employee did not know he was going to be made redundant as a “consultation” on redeployment. The preferable approach would be to warn them their position may be made redundant and give them time to consider the jobs with some assistance from Human Resources.
COMMISSIONER
Appearances:
Mr. Sam Cossar, the Applicant, for himself.
Mr. Matthew Jansa on behalf of the Respondent.
Hearing details:
3 December 2024
Melbourne
[1] Digital Court Book (DCB at) at 46 – from Mr. Cossar’s statement of evidence at paragraph 2.
[2] DCB at 97 to 115 contains: his letter of appointment, the “individual terms of appointment,” and other documents related to the Designer position.
[3] DCB at 89 – First Statement of Mr. Pisano paragraph 6
[4] DCB at 89-90 – First Statement of Mr. Pisano paragraph 12.
[5] DCB at 143-147.
[6] Ibid.
[7] DCB at 90 – First Statement of Mr. Pisano paragraph 14.
[8] Ibid.
[9] DCB at 90 – First statement of Mr. Pisano at paragraph 15.
[10] DCB at 90 – First Pisano Statement at paragraphs 16 and 17.
[11]DCB at 91 – First Statement of Mr.Pisano at paragraph 21.
[12] DCB at 138.
[13] PN 215.
[14] PN 216.
[15] DCB at 138.
[16] DCB at 91 at paragraph 22.
[17] DCB at 91 at paragraph 19.
[18] DCB at 91 at paragraph 20
[19] Ibid.
[20] DCB at 91 at paragraph 18.
[21] DCB at 137.
[22] Ibid.
[23] PN 362
[24] DCB at 71.
[25] PN 151.
[26] DCB at 92 – Statement of Mr. Pisano at paragraph 24.
[27] PN 94.
[28] PN 156.
[29] PN 86 – According to Mr. Pisano the idea to use the bland and opaque term “Haven business update” for a redundancy meeting was from Ms. Christy Charlton, a People and Performance Business Partner at Laminex.
[30] DCB at 139.
[31] PN 357.
[32] DCB at 46 at paragraph 9.
[33] PN 359.
[34] DCB at 92-93 at paragraphs 25 to 27.
[35] DCB at 164 at paragraph 13.
[36] DCB at 165-166.
[37] DCB at 166 at paragraphs 27 and 28.
[38] DCB at 195 to 199.
[39] PN 360.
[40] DCB at 200-201.
[41] DCB at 202.
[42] DCB at 47 – Mr. Cossar’s statement of evidence at paragraph 13
[43] DCB at 52-56.
[44] DCB at 53.
[45] DCB at 47 – Mr. Cossar’s statement of evidence at paragraph 13.
[46] DCB at 58-60 has a copy of the Productions Manager advertisement on SEEK.
[47] DCB at 66 – Mr. Cossar’s outline of argument on the jurisdictional objection at paragraph 2.
[48] DCB at 47 – Mr. Cossar’s statement of evidence at paragraph 14.
[49] DCB at 69 – Mr. Cossar’s outline of argument on objections at paragraph 19.
[50] Ibid.
[51] Ibid.
[52] DCB at 93 – Statement of Mr. Pisano at paragraph 32.
[53] DCB at 149 – the CV of Mr. Bikouvarakis.
[54] DCB at 94 – First Statement of Mr. Pisano at paragraphs 33 and 34.
[55] DCB at 152-154.
[56] PN 423.
[57] PN 431.
[58] PN 424.
[59] PN 425-428.
[60] DCB at 152-154.
[61] DCB at 68 – Mr. Cossar’s outline of arguments on the objection at paragraph 16.
[62] PM 471-474.
[63] DCB at 95 – Statement of Mr. Pisano at paragraph 36-39.
[64] DCB at 94 Statement of Mr. Pisano at paragraph 35.
[65] Ibid.
[66] See the approach of Deputy President Easton in Jun Lei Kang v. Shriro Australia Pty. Limited [2023] FWC 1992 at paragraph [25].
[67] Ibid [26]
[68] DCB at 92.
[69] Ibid.
[70] Ibid.
[71] Dibb v Commissioner of Taxation [2004] FCAFC 126 (13 May 2004), [43]-[44].
[72] DCB at 90 at paragraph 15.
[73] DCB at 165 at paragraph 20.
[74] PN 360.
[75] DCB at 11 and DCB at 58.
[76] DCB at 149.
[77] The Full Bench decision in Ulan Coal Mines Limited v. Honeysett [2010] FWAFB 7578, [34].
[78] DCB at 91 – Statement of Mr. Pisano at paragraph 22.
[79] PR786173.
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