Selvarasa v Wenco Pty Ltd
[2019] FCCA 3487
•30 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SELVARASA v WENCO PTY LTD | [2019] FCCA 3487 |
| Catchwords: INDUSTRIAL LAW – Allegation of adverse action in breach of general protection right – allegation based on absence due to injury – reverse onus – why was adverse action taken – evidence from decision-maker – no breach found – application dismissed. |
| Legislation: Fair Work Act 2009 (Cth), ss.341, 351, 352, 361, 389 |
| Cases cited: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 |
| Applicant: | RENOLD MENAN SELVARASA |
| Respondent: | WENCO PTY LTD |
| File Number: | PEG 116 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 18 November 2019 |
| Date of Last Submission: | 18 November 2019 |
| Delivered at: | Perth |
| Delivered on: | 30 November 2019 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Mr J Darams |
| Solicitors for the Respondent: | Clyde & Co |
ORDERS
The applicant’s application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 116 of 2018
| RENOLD MENAN SELVARASA |
Applicant
And
| WENCO PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
By application filed in this Court on 28 February 2018, Mr Selvarasa claims that his former employer, Wenco Pty Ltd (“Wenco”), dismissed him in contravention of s.352 of the Fair Work Act 2009 (Cth) (the “FW Act”).
Mr Selvarasa claims that he was dismissed from his employment as a result of being temporarily absent from work due to injury. Wenco denies this claim and counters that Mr Selvarasa’s dismissal was a genuine redundancy aimed at reducing costs.
This matter was heard on 18 November 2019. Mr Selvarasa appeared without legal representation. Mr Selvarasa is not fluent in the English language and was assisted by a Tamil interpreter. Mr Darams, of Counsel, appeared for Wenco.
The evidence in this matter consists of:
a)an affidavit from Mr Selvarasa sworn 22 November 2018; and
b)an affidavit from Paul Nicholas Peca affirmed 25 February 2019. Mr Peca was Wenco’s Chief Executive Officer at the relevant time.
No objections were made in relation to the affidavit evidence. Mr Selvarasa was not cross-examined. Mr Selvarasa did, however, cross-examine Mr Peca.
Background
The background to this matter can be summarised as follows:
a)Mr Selvarasa commenced his employment with Wenco in or around September 2016. He was originally employed as a Workshop Coordinator on a casual basis. From 17 November 2016, he was employed on a full-time basis;
b)on 14 September 2017, Mr Selvarasa was given a “First Written Warning” due to what Wenco claimed was “unsatisfactory conduct”;
c)on 27 November 2017, Mr Selvarasa injured his finger while at work (the “injury”). He attended at a hospital for medical treatment;
d)on 28 November 2017, Mr Selvarasa did not attend work because of the injury;
e)on 29 November 2017, Mr Selvarasa returned to work. However, he was sent home because of his injury;
f)on 30 November 2017, Mr Selvarasa returned to work; and
g)on 1 December 2017, Mr Selvarasa was advised that his position had been made redundant.
Mr Selvarasa’s Case
Mr Selvarasa claims that he was “sacked because I injured myself and took sick leave” and “because they didn’t want me to take sick leave or give me different duties because of my health”.
As noted, Mr Selvarasa was not cross-examined on his evidence. Unfortunately, many matters in Mr Selvarasa’s affidavit are irrelevant to the case he has pleaded before the Court.
The relevant paragraphs in Mr Selvarasa’s affidavit provide as follows:
5. At that time, I was left with a balance of 10 days of sick leave eligible to me. I appeal that the payment in lieu of these 10 days be made available to me. I appeal I be given a gratitude payment of 4 week’s salary.
6. The company had cited loss of revenue and jobs for stopping my work, but had recruited two persons as supervisors namely: Sankar and David. They were recruited as full time permanent workers just one month prior to my dismissal. They received more salary than me and in addition they also paid overtime. A person called Lenton Aiden, who worked as an assistant to me for only six months, was also paid extra overtime.
7. It is evident that the company was working busily, paying overtime but had targeted me, who had worked for 1 ½ years, all of a sudden, to be dismissed. This is unfair dismissal.
8. When five persons were working, and 4 of them were recruited within six months, how could the company say that income loss is occurring? It is normal to retrench workers during income loss, but the fact that the company had recruited 4 new workers within 6 months very clearly show that my dismissal on the grounds of income loss is unfair.
9. The normal criterion for retrenching in any company running at a loss is to adhere to a “Last came out first” basis. In my case this was not adhered to.
10. The Fair Work Commission Law clearly states that any decision on injured workers could be taken only within 3 - 6 months after a worker is injured in any accident. But in my case, I had been dismissed in three days from the accident, which was very unfair dismissal at a time when I needed all assistance to recover soon from my injury.
11. I understand what happened to me was pure racism. They commenced treating me in racist and other ways starting well more than 6 months ago with a hidden agenda of compelling me to leave the job myself. However, on my part I was executing my work well as usual
12. For example, me and Lenton, a co-worker used to place our drinking water bottles side by side. From the day I joined the company this is the spot where I used to place my drinking water bottle. When I went to drink water on this particular day, I saw my bottle had been thrown down draining the water it was containing, but Lenton’s bottle was in its place. I immediately went to my immediate supervisor, Mr. Scoad and asked him why my water bottle had been thrown down.
13. He told me that he had thrown it down because it was hindering his access. I immediately asked him, about Lenton’s bottle which was also there and whether that was not a hindrance to his access and is it only my bottle hindering his access. He openly said “YES ... do anything you want
14. I informed management about this situation, one of them said that “We cannot interfere in this, there is a person called Rahul Thottiyil and take the dispute to him. I also said that throwing down your bottle and leaving the other bottle in its place is wrong. He told me to speak to Rudolf You complain to Rudy and he will solve the problem and I will also tell him. As far as I am concerned this is also apathy. However, I can’t say anything. This is their family business. They will not listen to us. They are also treating me in the same way. However, I will see what I can do.”. He consoled me and sent me away.
15. Later Rudy came and found out how the things had happened and went into the room of the person who had thrown the bottle away, came out and told me, ‘Look Menon, I also agree that there is point in throwing your bottle .... it is like racism .... Please Menon, you can put your bottle any other place.’
16. I replied him that I am working in open space. Everywhere else asbestos powder is falling down and the liquids which are flammable and dangerous chemicals such as Tollin and Cyanide. Someone may mistakenly drink it or mix it. Hence no other place is safe for keeping my water bottle. I also asked him, this bottle was here all this time and how has this bottle become hindrance to you? Attached and marked C’ is a letter from Rahul Thottiyil describing these events.
17. From all this I became aware that they inhumanly extracted work from me, then made me to train Lenton fully and now they want to dispose me and give my place to Lenton.
18. I am not wanted anymore. They are trying to pressurize through creating several problems and make me leave my job myself. Attached and marked ‘D’ is a warning letter when they tried to make me leave my job.Failing in their attempt to make me leave the job, because I was working well amongst these tortures, they used the chance of my injury and dismissed me unfairly.
19. I was not delivered with justice, at the Fair Work Commission and hence, I had sought Your Honour’s kindness with a hope that your honour will deliver me with Justice. I have two children and a heavy mortgage to pay. I beg to intimate to Your Honour that, if I won’t get justice from you, my family will be pushed to brink of destitution.
(Without alteration)
Mr Selvarasa also filed a written outline of submissions. Those submissions largely outlined the uncontested factual matters described above but, relevantly, otherwise provided:
5. I questioned the Respondent for the reason for sudden termination of my employment. They explained the reason stated in the Letter of termination. Respondent requested me to not to make any further contacts with the Respondent and all the communications would only by e-mail.
6. Respondent cited reason for my termination was due to down tern in mining sales and internal changes.
7. I do not agree with this ground for termination of my employment.
8.Respondent employed two other persons named Sankar and David at last one month prior to my termination on the 1 December 2017.
9. The other three persons namely Mr. Jimmy Thankachan, Mr. Gowtham Rajendran and Mr. Joel Walraven cited by the Respondent also made redundant along with me were from another department and not from the department where I worked. They were not connected with the section where I worked.
10.I along with other four persons worked in my section (workshop). I was singled out and made redundant but not the other four persons. The other four persons were allowed to work overtime and they were doings my work duties.
11. I was also subject to racial abuse by a former employee of the Respondent.
12. Respondent was already planning to terminate my employment on non-existent reasons in September 2017. The warning letter the Respondent gave me on the 14 September 2017 contained a final paragraph with the sentence ‘Failure to satisfactorily address these matters may result in the termination of your employment with Wenco Pty Ltd.
13. I do not accept that the Respondent had genuine redundancy to terminate my employment but purely used the word redundancy to terminate my employment. Further Respondent also used the injury I suffered on the 27 November 2017 as another ground to terminate my employment.
14. Respondent did not follow any consultations process prior to terminating my employment. I did not have any prior meetings or warnings from Respondent regarding their intention to terminate employment on redundancy grounds. Respondent only handed over the Letter of termination on the 1 December 2017 and was asked to leave their business premises. Back in September 2017 Respondent used different grounds to terminate my employment. When that failed then Respondent used the word Redundancy without any genuine redundancy of the particular workshop where I worked. Respondent could have offered me another employment in other Departments or sections
(Without alteration)
At hearing, the Court began by explaining to Mr Selvarasa the procedures that generally apply to matters of this sort. Mr Selvarasa was asked if he wished to make an opening statement. He said he did not wish to do so. Rather, he wished only to ask questions of Mr Peca.
Unfortunately, many of the questions “asked” of Mr Peca were more akin to submissions. This is not unusual within the context of an unrepresented applicant.
In effect, Mr Selvarasa said during the hearing:
a)the fact that other people joined Wenco before and after Mr Selvarasa’s dismissal suggests that Wenco was not suffering financial difficulties and it was not a genuine redundancy;
b)the position that was given to Mr Selvarasa was not one he requested. Rather, it was just given to him. He was given this position because it could be taken off him at any time. The dismissal was all pre-planned;
c)the First Written Warning he received from Wenco indicates that his dismissal was pre-planned;
d)the person who signed the First Written Warning is not from the Wear/Corrosion Protection for Rubber Lining, Conveyors & Ceramics Division (the “RLCC Division”) and Mr Selvarasa does not accept what is stated in the First Written Warning;
e)Mr Selvarasa feels that Wenco had planned to get rid of him after one year; and
f)as soon as he got injured, Mr Selvarasa was out of a job.
Wenco’s Case
Wenco denies dismissing Mr Selvarasa because he was absent from work due to an injury. Wenco’s position is that Mr Selvarasa was dismissed as a result of a “genuine structured redundancy arising from a slowdown in the business”.
Mr Peca was the sole “decision-maker” in relation to the decision to dismiss Mr Selvarasa.
Much of Mr Peca’s affidavit details Wenco’s overall business structure.
Relevantly, Mr Peca’s affidavit evidence can be summarised as follows:
a)in 2015, Wenco was facing a number of trading issues and a decision was made to expand and diversify Wenco’s business by adding a third service to the company, the RLCC Division. Mr Selvarasa was hired as a Workshop Coordinator in the RLCC Division;
b)Mr Peca was aware that Mr Selvarasa had been issued a First Written Warning; however, this played no part in the decision to terminate Mr Selvarasa;
c)at no time did Mr Peca receive a complaint from any individual regarding racism towards Mr Selvarasa;
d)by around mid-2017, Wenco’s business was experiencing a number of issues. Sales had been gradually slowing and forecasted work was also low. There were a number of reasons for this downturn in business including the fact that Wenco had no major projects or maintenance contracts. Wenco was also feeling the effects of increased competition (several companies had come into the area and had saturated the market) and there was a general slowdown in the market due to varying factors including commodity prices and scepticism in world trade markets;
e)in October 2017, a review was conducted by Mr Peca and Wenco’s managers which focused on a structural realignment from management to floor personnel in an attempt to reduce costs and minimise the impact of the slowdown without causing further loss. The review looked at all employees, the size and functionality of the team and how Wenco could best accommodate them, either in their current position or an alternative position;
f)in the course of the review it became apparent that Wenco could not accommodate all employees. It was determined that the RLCC Division was overstaffed and underperforming. The review showed that there was some overlap between roles and duplication of tasks as between the roles. Four employees were identified as holding redundant positions. Mr Selvarasa was one of those employees;
g)it was decided the following employees would remain instead of Mr Selvarasa:
i)Linton Horburgh who possessed offsite experience and a willingness to travel to various mine sites across Western Australia. Mr Selvarasa did not want to travel to sites; and
ii)Tevita Maile who possessed experience in the field of rubber lining and distribution. His skills could be used across multiple areas including as workshop coordinator for logistic and distribution purposes and providing assistance in service work when needed;
h)following a meeting on 29 November 2017, Mr Peca made the decision to dismiss Mr Selvarasa for reasons of redundancy. Mr Peca relied upon information presented to him during the review in October 2017, discussions with other managers and information about Wenco’s performance during November in making the decision;
i)the reasons for deciding to terminate Mr Selvarasa as opposed to others were that:
i)his position was one of four positions that had been identified by the review carried out in October 2017 as being redundant; and
ii)Mr Peca was trying to reduce Wenco’s costs in order to assist its financial position. Dismissing Mr Selvarasa and saving the cost of his salary was one way that that reduction could, in part, be achieved;
j)at [29], Mr Peca states:
I deny that Mr Selvarasa suffering an injury… was a reason or any part of the reasons why I decided to terminate his employment. I deny that the fact that he was absent from work for a some (sic.) short time after suffering that injury was a reason or any part of the reasons for why I decided to terminate his employment. I deny that it was a reason or any part of the reasons why I decided to terminate his employment that Mr Selvarasa injured himself at any time and/or took sick leave at any time. The only reason why Mr Selvarasa’s employment was terminated was because his position had been identified as being redundant. I terminated his employment on that basis.
Mr Peca was “cross-examined” by Mr Selvarasa. The Court notes that in circumstances where Mr Selvarasa is unrepresented and required the assistance of an interpreter, there were occasions where the questions were not articulated properly and Mr Peca indicated that he did not understand. It did not appear to the Court that Mr Peca was avoiding answering questions. Rather, some of Mr Selvarasa’s questions were simply unclear. When prompted to clarify what was being asked, Mr Selvarasa was able to “rephrase” his questions. Mr Peca then attempted to answer as best he could. The Court draws no adverse inference from Mr Peca’s inability to answer questions directly as many of the questions were broad in nature and lacked clarity.
Mr Peca’s evidence in cross-examination can be summarised as follows:
a)Mr Peca did not personally hire Mr Selvarasa and, as far as he could tell, the position that was offered to Mr Selvarasa was as a Workshop Coordinator: Transcript, pp.12-13;
b)Mr Peca could not answer the question about whether he had made the right decision by dismissing Mr Selvarasa “when he was injured at work” because Mr Selvarasa was not dismissed due to a work injury: Transcript, p.15;
c)in response to a question about whether Mr Peca chose to dismiss Mr Selvarasa because of the financial situation of the company Mr Peca responded “Yes”. When asked if it was because of “personal reasons” Mr Peca responded “No personal reasons”: Transcript, p.16;
d)Mr Peca became aware of the First Warning Letter only after Mr Selvarasa had been provided with it and Mr Peca was not required to approve or authorise the issue of the First Warning Letter: Transcript, p.16;
e)other individuals had joined Wenco prior to Mr Selvarasa being dismissed. However, this was because of their experience and they were hired prior to any decision being made about redundancies: Transcript, p.17;
f)a position was filled prior to Mr Selvarasa being made redundant that had been vacated by “Aidan Gilmour” and it was a necessity that that position be filled (specifically for the stock logistics and despatch area) and another person, “Robert”, was hired who was cross-divisional: Transcript, p.17;
g)Mr Peca is not aware of an individual named “David” being employed prior to Mr Selvarasa being dismissed as there is currently no David employed by Wenco. It may be that that individual was a “labour hire” employee for a specific job. However, Mr Peca was not aware of an individual named David: Transcript, p.18. Mr Peca was not aware of what jobs the individuals from the labour hire company were completing: Transcript, p.20
h)another supervisor, “Sankar”, was hired approximately one month before Mr Selvarasa was dismissed and this hire was “positional”. The individual was brought in specifically for that position: Transcript, pp.18-20;
i)when asked whether Mr Selvarasa was dismissed because he was injured and had taken leave from work, Mr Peca responded that Mr Selvarasa was not dismissed because of his injury: Transcript, p.21; and
j)in response to a question from the Court about whether there was any consultation with Mr Selvarasa prior to the redundancy, Peca said he was unaware as to whether any consultation had occurred: Transcript, p.22.
Wenco’s written submissions can be summarised as follows:
a)the operative decision by Wenco to dismiss Mr Selvarasa was made by Mr Peca. He was the sole decision maker. The Court is to consider his reasoning and mental process;
b)Mr Peca decided to dismiss Mr Selvarasa for reasons of redundancy. In making that decision, Mr Peca was trying to reduce Wenco’s costs in order to assist its financial position. Dismissing Mr Selvarasa was something Mr Peca thought would assist, in part, with that. This is a paradigm example of a redundancy situation in that Mr Selvarasa’s position was no longer needed because of Wenco’s operational reasons;
c)Mr Peca did not decide to dismiss Mr Selvarasa because he suffered his injury or as a result of him taking time off because he had suffered that injury;
d)none of the reasons for why Mr Peca decided to dismiss Mr Selvarasa’s employment were reasons protected by s.352 of the FW Act;
e)the reason why Mr Peca decided to terminate Mr Selvarasa’s employment – the redundancy of his position – is not prohibited or protected under the FW Act;
f)if the Court accepts Mr Peca’s evidence then Wenco will have rebutted the presumption under s.361 of the FW Act;
g)Mr Peca’s evidence is not inherently incredible or implausible. A decision by an employer to save costs by making jobs redundant is a position that is regularly experienced and/or adopted by employers in Australia. Put another way, it is completely realistic that an employer like Wenco when faced with declining revenue and deteriorating market conditions would consider implementing costs saving measures, including redundancies;
h)the reason given by Mr Peca is supported by other evidence that he gives. This includes evidence about the declining financial position of Wenco and the fact that other employees were also made redundant at the same time. They are considerations and consequences one ordinarily sees or comes to expect in these circumstances;
i)there is no other evidence that contradicts Mr Peca’s evidence about why he decided to dismiss Mr Selvarasa and/or his evidence denying that the reasons included Mr Selvarasa’s injury or taking time off because of the injury; and
j)there is no other objective evidence that contradicts Mr Peca’s evidence as to his reason (and denial of the prohibited reason) for dismissal. Nor, for that fact, is there any evidence that demonstrates a causal connection or relationship between Mr Selvarasa’s injury (and his absence from work) and the decision to dismiss him from his employment.
At hearing, Counsel for Wenco further submitted:
a)there was nothing to suggest that Mr Peca’s evidence was unreliable. There was no evidence from Mr Peca orally that contradicted the evidence in his affidavit about the reason for dismissing Mr Selvarasa;
b)Mr Peca as a witness gave his evidence and answered the questions as best and as direct as he could. There was nothing in Mr Peca’s evidence that might cause the Court to doubt Mr Peca’s veracity as a witness; and
c)Mr Peca’s evidence is that the Wenco Pty Ltd Enterprise Agreement 2015 (the “Wenco Agreement”) did not apply to Mr Selvarasa’s employment and this is shown by referencing the duties of Mr Selvarasa with those to which the Wenco Agreement covers and there is no overlap.
Was Mr Selvarasa dismissed because he was temporarily absent due to injury?
The issue in this case is relatively confined: was Mr Selvarasa terminated because he was absent from work from 27-29 November 2017 due to the injury.
Wenco has conceded that the reverse onus in s.361 of the FW Act has been enlivened here. Mr Selvarasa was “dismissed” and he was “temporarily absent from work because of illness or injury”. In those circumstances, the Court must presume that Mr Selvarasa was dismissed because of his absence due to the injury unless that presumption is rebutted.
In State of Victoria (Office of Public Prosecutions) v Grant (2014) 246 IR 441 at [32], Tracey and Buchanan JJ, drawing from the High Court authorities of Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 and Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41, summarised the principles relevant to the Court’s consideration here as follows:
•The central question to be determined is one of fact. It is: “Why was the adverse action taken?”
•That question is to be answered having regard to all the facts established in the proceeding.
•The Court is concerned to determine the actual reason or reasons which motivated the decision-maker. The Court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker. Nor should such an enquiry be made.
•It will be “extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer.”
•Even if the decision-maker gives evidence that he or she acted solely for non-proscribed reasons other evidence (including contradictory evidence given by the decision-maker) may render such assertions unreliable.
•If, however, the decision-maker’s testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by s 361.
(References omitted. See also, Western Union Business Solutions (Australia) Pty Ltd v Robinson [2019] FCAFC 181 at [117])
Here, Wenco says that the reason that Mr Selvarasa was dismissed was because his position was redundant. Mr Peca denied (in both his affidavit evidence and in Court) that Mr Selvarasa’s temporary absence due to his injury was given any consideration in relation to this decision. Mr Peca also positively confirmed, in his affidavit and during cross-examination, that Mr Selvarasa was dismissed for financial reasons related to Wenco and not for any other reason (either personal or injury related): Transcript, pp.16 and 21.
The Court accepts this evidence as entirely credible.
Mr Peca struck the Court as a confident and composed witness. He was patient when asked questions that were sometimes vague and admitted when he did not know the answer to questions asked of him. Nothing in the way in which Mr Peca gave his evidence causes the Court to doubt the truth of his statements.
The Court is also satisfied that other evidence before the Court corroborates Mr Peca’s testimony. In this regard, the Court notes as follows.
Mr Peca’s affidavit indicates that Mr Selvarasa’s position was identified as being redundant in October 2017: Mr Peca’s affidavit at [24]. This was prior to Mr Selvarasa’s absence because of injury.
While a final decision was not made by Mr Peca until 29 November 2017, Mr Peca’s evidence was that the final decision was based on the fact that Mr Selvarasa’s position had been identified as being redundant and he believed it would assist Wenco’s financial position if Mr Selvarasa were dismissed.
Annexed to Mr Peca’s affidavit was Wenco’s Income Statement from July 2015 to January 2018. Mr Peca indicated that part of the reason for dismissing Mr Selvarasa was Wenco’s performance in November 2017. The income statement revealed that in October 2017, Wenco made a profit. However, in November 2017, Wenco incurred a loss. The sales and trading income between October and November 2017 also dropped significantly more than in previous months. Hence, Wenco’s performance in November would suggest that costs needed to be cut. It is also of note that Wenco’s financial position had deteriorated since July 2017.
The income statements thus corroborate Mr Peca’s evidence that Wenco had “issues” at the time and that there was a need to reduce costs. It would be perfectly logical to do so by effecting redundancies, of which there were four, to save the expenditure resulting from the salaries or wages for these individuals.
Mr Selvarasa’s own evidence was that it was normal for a company to retrench workers where there was income loss: Mr Selvarasa’s affidavit at [7]. Here, the evidence shows that there was income loss at the time Mr Selvarasa was made redundant.
In light of this evidence, the Court is satisfied that the reason for Mr Selvarasa’s dismissal was because of a need to cut costs to assist Wenco’s financial position and not because Mr Selvarasa was temporarily absent due to injury.
Mr Selvarasa referred in his affidavit to the recruitment of four new workers in the six months prior to his dismissal. His submission was to the effect that, having hired these people in the months prior to his redundancy, it cannot be said that there were financial difficulties or income loss.
Mr Selvarasa spent some time directing questions toward Mr Peca about persons or individuals hired shortly prior to Mr Selvarasa being made redundant.
Mr Peca stated that, to the best of his knowledge, the persons who were hired prior to Mr Selvarasa being dismissed were “cross-divisional” and “positional”. That is, these individuals were not confined to the RLCC Division and could be used in other areas of the business. Alternatively, these persons were not employed in the same position as Mr Selvarasa. Rather, these individuals were specifically hired to perform a different role or in relation to another position.
Mr Selvarasa made a number of references to “Sankar”. This individual was a “supervisor”. Hence, the Court is prepared to accept Mr Peca’s evidence that this individual was hired to perform a particular position – i.e., that of “supervisor”. Mr Selvarasa’s position, on the other hand, was as a Workshop Coordinator.
Mr Selvarasa also noted that a person named “Aiden” was hired “a short time” prior to his dismissal. Mr Peca explained why this individual was hired – namely, a different individual had left a role in the RLCC Division stock and logistics despatch area and the role was a “necessity” that simply had to be filled. It was filled by man named “Aiden”.
This does not demonstrate that there were not financial difficulties. Rather, it demonstrates that Wenco was seeking to fill positions (positions that differed from Mr Selvarasa’s) that were necessary to maintain the company’s operations.
Further, Mr Peca’s evidence was that these persons (Sankar, Aiden and perhaps one other) were hired prior to any redundancy decisions being made. This evidence was not challenged.
An investigation into the need for redundancies was not commenced until October 2017. At a monthly management meeting in October 2017, Mr Selvarasa’s position was first identified as being potentially redundant.
In circumstances where Mr Peca’s evidence was that the persons (Sankar, Aiden and perhaps one other) were hired before any decision on redundancies was made, the Court does not consider that the hiring of other individuals discredits Mr Peca’s evidence.
Mr Peca’s evidence also indicated that there was an overlap in roles. There were, it appears, two other Workshop Coordinators. Critically, Mr Peca’s evidence (at [25]) explains why the other two Workshop Coordinators were retained when Mr Selvarasa was not. The Court finds those reasons to be entirely credible. The other two individuals employed in the same position as Mr Selvarasa could be utilised in other areas or were willing to undertake other duties. It appears that Mr Selvarasa was unable to do so. It is entirely plausible that a decision would be made to retain these other two individuals over Mr Selvarasa.
Evidently, three workshop coordinators were not required. One of the three positions was redundant. Unfortunately, Mr Selvarasa was identified as the person who would lose his position.
The Court is satisfied that the decision to retain the other two individuals over Mr Selvarasa was not a decision made because Mr Selvarasa was temporarily absent due to injury.
The Court accepts as reliable Mr Peca’s evidence about why certain individuals were hired and why other employees were selected over Mr Selvarasa.
Further, the fact that other persons were hired in the months prior to the redundancies does not cause the Court to doubt that Wenco was experiencing a slowdown in business and needed to reduce costs, nor that Mr Selvarasa was dismissed because he was temporarily absent due to injury.
The temporal connection between Mr Selvarasa’s injury and his dismissal is strong. There were only two days between the injury and the dismissal. However, as noted by Judge Driver in Dahler v Australian Capital Territory (No 2) (2015) 296 FLR 363 at [18] “[t]he fact that a dismissal occurs in time after a particular activity of the employee also does not necessarily mean that it constitutes an operative reason for the dismissal”.
Contrary to Mr Selvarasa’s submission there is no “Fair Work Commission Law” which states that any decision on injured employees can only be made 3-6 months after an employee is injured. The Court is not satisfied that the fact that Mr Selvarasa was injured and absent from work shortly prior to his being dismissed was in any way connected to the reason he was dismissed. Three other individuals were dismissed on the same day.
Another matter which arose on the face of the materials (noting Mr Selvarasa’s submissions at [14]) was that Mr Selvarasa was, in effect, “blindsided” by the redundancy. There was no consultation or discussion with him. In the course of Mr Peca’s evidence the Court asked a question regarding clause 26 of the Wenco Agreement which was Annexure PP-2 to the Mr Peca’s Affidavit. That clause provided as follows:
26. CONSULTATION
26.1 This clause applies if a major workplace change is likely to have a significant effect or there is a change to the regular roster or ordinary hours of work on Employee’s (the relevant Employee’s).
26.2 The Employer must notify and provide information to the relevant Employees of:
(a) A major workplace change that is likely to have a significant effect on the Employee’s; or
(b) A change to their regular roster or ordinary hours of work.
26.3 The Employer must consult and invite the relevant Employee’s to give their views about:
(a) The timing and introduction of the change;
(b) The impact the change is likely to have on the Employee’s (including any impact in relation to their family or caring responsibilities); and
(c) Measures the Employer is taking to avert or mitigate the adverse effect of the change on the Employee’s.
26.4 The Employer is not required to disclose confidential or commercially sensitive information to the relevant Employee’s.
26.5 The Employer must consider matters raised about the major change or changes to their regular roster or ordinary hours of work by the relevant Employee’s.
26.6 An Employee may appoint a representative for the purposes of the consultation.
The Court asked Mr Peca if he was aware of whether there had been any consultation with Mr Selvarasa as defined in cl.26. Mr Peca responded that he “was not sure”.
The Court notes that Mr Peca’s affidavit evidence stated that Mr Selvarasa was not a person covered by the Wenco Agreement.
Wenco made submissions to the effect that it had not come prepared to meet a case regarding any breach of the Wenco Agreement.
The Court’s question was not concerned with determining whether there had been any breach of the Wenco Agreement. Rather, it was concerned with the fact that there had been no consultation with Mr Selvarasa prior to the redundancy being effected.
While the Court notes that this is not an unfair dismissal claim, s.389(1)(b) (a clause that is relevant to unfair dismissals) defines “genuine redundancy”. For there be a “genuine redundancy” the employer has to comply with any obligation to consult with an employee. Here that did not occur. The Court is not concerned with the failure (if any) to comply with s.389(1)(b) of the FW Act. As noted previously this is not an unfair dismissal case. On one view, however, the failure to consult could lead the Court to infer that the redundancy was not genuine or that the redundancy was effected for an alternative reason (i.e. because Mr Selvarasa was absent).
While the Court does have concerns that there was a failure to consult with Mr Selvarasa, the Court does not consider that this failure indicates that the adverse action was taken for a prohibited reason.
Here, it cannot be said that Wenco did not consider alternative positions. Mr Peca’s affidavit states that such consideration was given (at [22]). However, Wenco’s position was that no alternative positions could be offered and positions had to be removed: Mr Peca’s affidavit at [23]. Wenco did appear to take time to consider the possibility of alternative positions even if it did not discuss this with employees or include employees in any conversation.
Hence, the failure to consult, which may or may not have been a requirement (see Port Kembla Coal Terminal Ltd v Construction, Forestry, Mining and Energy Union (2016) 248 FCR 18 at [186] and [499]), does not undermine Mr Peca’s evidence as to the reason why he dismissed Mr Selvarasa.
Finally, at the conclusion of “cross-examination”, Mr Selvarasa made the following comments:
INTERPRETER: Okay. So he says the lawyer has said that there was injury – there was a previous injury before joining the company.
HIS HONOUR: All right. And why is that relevant?
THE INTERPRETER: Sorry, your Honour. It’s not very clear. So the lawyer has said that there was another injury before this particular injury took place on the 27th.
HIS HONOUR: And why does he want me to note that?
THE INTERPRETER: So he just said that he was not dismissed because of the injury, but then, in the lawyer’s statement, it says there was a previous injury. So why would they mention about the previous injury in their statement?
HIS HONOUR: Well, I don’t think Mr Peca can answer for his lawyer. Why do you think that’s relevant? Why do you want me to know that? Are you, for example, saying that the fact that there is an acknowledgement of a previous injury is evidence, in your opinion, that you were dismissed because you were injured?
THE INTERPRETER: Yes, your Honour.
The only reference to a previous injury is seen in Mr Selvarasa’s application, where he states that six months earlier he had taken sick leave for an operation. No evidence was advanced in respect of this particular illness or injury and the Court is satisfied that it had no role in Wenco’s consideration of whether Mr Selvarasa should be dismissed.
The Court is satisfied, on the balance of probabilities, that Mr Selvarasa’s temporary absence because of injury played no part in the decision to dismiss him from his employment.
For the reasons already expressed above, the Court accepts Mr Peca’s evidence as reliable. The documentary evidence supports his claim that the reason for the dismissal was due a cost cutting measure in light of a downturn in sales.
Other matters
A number of other matters arise on the face of Mr Selvarasa’s submissions that should be addressed, albeit briefly.
Express throughout Mr Selvarasa’s written and oral submissions is his strong belief that he was “unfairly dismissed”. During cross-examination Mr Selvarasa used the term “unfair dismissal”. The Court explained to him that he had not brought an application alleging unfair dismissal. He had, instead, alleged that adverse action was taken against him for a prohibited reason.
Whether Mr Selvarasa feels his dismissal was unfair is not relevant to the Court’s task in an application of this sort: Sallehpour v Frontier Software Pty Ltd (2005) 139 IR 457 at [38]; Vink v LED Technologies Pty Ltd [2013] FCA 443.
Here, what is alleged is a contravention of s.352 of the FW Act. The focus is on the substantial and operative reasons which motivated Mr Peca to dismiss Mr Selvarasa. Provided that those reasons did not include Mr Selvarasa’s absence because of injury (which the Court is satisfied they did not) it does not matter that the process by which Mr Selvarasa was selected for the redundancy was unfair or, as Mr Selvarasa suggests, pre-meditated.
The same can be said for the consultation requirements (if there were any) discussed above. If Mr Selvarasa believed he was entitled to be consulted, then the matter ought to have been pleaded as an unfair dismissal claim of the sort that would require the Court to consider in some detail s.389(1)(b) of the FW Act. Here, the Court is not required to do so.
Mr Selvarasa said the First Warning Letter was, in effect, wrong and unfair and that he was “targeted”. He says the allegations in the letter were incorrect. Mr Selvarasa also refers to being mistreated and says Wenco had a hidden agenda to force him to leave. The Court notes that these assertions are, again, better placed in an unfair dismissal claim.
Nonetheless, Mr Peca’s evidence denied that there was any personal reason for the decision to dismiss Mr Selvarasa. The Court accepts this evidence. Mr Peca’s evidence also denies that the First Warning Letter had any bearing on his decision to dismiss Mr Selvarasa. Mr Peca’s evidence was that he was not involved in this matter and that he only became aware of it “after the fact”. The Court does not consider that the issuance of the First Warning Letter leads to any adverse inference or suggestion that Wenco dismissed Mr Selvarasa for a prohibited reason.
Mr Selvarasa suggested that Wenco was motivated by “pure racism”. He indicated that he had made a complaint after an incidence in November 2016. For the sake of finality, the Court does not consider that the adverse action was taken on the basis of Mr Selvarasa’s race (prohibited by virtue of s.351) or because he had made a complaint in this regard (the exercise of a workplace right under s.341(1)(c)).
Once again, Mr Peca confirmed that there were no “personal reasons” for the adverse action being taken. The Court accepts this evidence. Mr Peca’s evidence also indicates that he was not aware of any complaint ever being made in respect of any discrimination in the workplace: Mr Peca’s Affidavit at [17]. In circumstances where Mr Peca says he was not aware of any complaint and he was the sole decision-maker, the Court is satisfied that this was not a reason for Mr Selvarasa’s dismissal.
Finally, Mr Selvarasa stated in his application that he made a workers compensation claim. Wenco denies this was a factor in relation to Mr Selvarasa’s dismissal.
Mr Selvarasa did not press this point at the hearing. The Court, in any event (for the reasons outlined above) is satisfied that the potential exercise of a workplace right to make a workers compensation claim was not a matter considered in relation to Mr Selvarasa’s dismissal. The reasons for Mr Selvarasa’s dismissal are those that Mr Peca gave in his evidence.
Conclusion
The Court has done its best to assist Mr Selvarasa, who was legally unrepresented. It has sought to address each of the matters he has raised in the materials before the Court.
Wenco has successfully rebutted the reverse onus in s.361 of the FW Act. The Court is satisfied, on the balance of probabilities, that Mr Selvarasa was not dismissed for a prohibited reason. Mr Selvarasa was dismissed because of a need to reduce costs in circumstances where his position was no longer required.
The application, accordingly, is dismissed.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 5 December 2019
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