Sharmilan Shanmuganathan v Bakery Fresh Pty Ltd

[2015] FWC 8907

[2015] FWC 8907

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sharmilan Shanmuganathan
v
Bakery Fresh Pty Ltd
(U2015/8273)

COMMISSIONER RYAN MELBOURNE, 23 DECEMBER 2015

Application for relief from unfair dismissal - genuine redundancy.

[1] The Applicant filed his unfair dismissal application on 5 June 2015. The Respondent filed an Employer Response on 24 June 2015 in which the Respondent contended that the dismissal of the Applicant was a case of genuine redundancy. Directions were issued to both parties requiring both parties to file an outline of submissions and any witness statements dealing with both the jurisdictional issue of genuine redundancy and the merits of the unfair dismissal application.

[2] The Applicant filed a two page document which appeared to be both a submission and a statement from the Applicant concerning his dismissal. The Applicant’s material was relevant to the issue of the merits of the case but did not address at all the issue of genuine redundancy.

[3] The Respondent filed an outline of submissions and five witness statements. The Respondent’s material dealt extensively with the issue of genuine redundancy.

[4] The matter was listed for hearing on 18 November 2015 in relation to both the jurisdictional challenge of genuine redundancy and the substantive merits of the unfair dismissal application. A Tamil translator had been arranged to attend to assist the Applicant.

At the hearing of the matter on 18 November 2015 it was obvious that the Applicant did not understand the nature of the jurisdictional challenge raised by the employer and thus had not addressed the issue of genuine redundancy in his written material. As the directions issued by the Commission had been issued in English it was apparent that the Applicant had limited command of the English language.

[5] Through the Tamil translator the Commission identified to the Applicant the nature of the jurisdictional challenge that had to be considered before the Commission could consider the merits of the Applicant’s application. The Commission drew the Applicant’s attention to the Unfair Dismissal Benchbook being available on the Commission website and to the discussion in the benchbook in relation to genuine redundancy.

[6] The Commission adjourned the hearing and gave the Applicant until close of business on 16 December 2015 to file with the Commission and serve on the Respondent any further material (either argument or evidence) which went to the question of genuine redundancy. The Respondent was given an opportunity to respond to any material filed by the Applicant.

The Commission further indicated to the parties that the Commission would decide the matter on the papers once any further material had been filed.

[7] The Applicant failed to file any further material by close of business on 16 December 2015.

[8] On 21 December my Associate, using a Tamil translator, contacted the Applicant to ascertain why the Applicant had not yet filed any further material and whether the Applicant intended to file any further material. It became apparent during the conversation that the Applicant did not intend to file any further material in relation to the issue of genuine redundancy.

Genuine Redundancy

[9] The relevant provisions of the Act are s.396 and s.389 which are as follows:

“396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.”


“389 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.”

[10] Mr Christopher Riches, General Manager of the Respondent filed a witness statement in this matter. Mr Riches evidence was that since he became General Manger in February 2013 the number of employees of the Respondent has declined from 115 to 75. The dismissal of the Applicant was as a result of the Respondent reviewing the manufacturing processes in one part of the factory. As Mr Riches described it:

“12. The preparation of fillings is conducted in 2 areas of the facility, this is done for allergen management and workflow reasons.

13. The filling preparation for packing room 1 was a 1 person per shift fulltime process over 24 hours on average 5 days a week.

14. The filling preparation for packing room 2 is a part time process, as this operator has other tasks.

15. In this review process an opportunity was identified modify the process in packing room 1, this modification of the process would result in a significant reduction in staffing requirements, with the task becoming a part time process, similar to packing room 2.

16. The applicant's engagement with the business was almost exclusively in the preparation of filling in packing room 1.

17. The applicant had been employed by the business and had held a permanent position.

18. The applicant's employment is governed by the Food, Beverage and tobacco Award, and he is remunerated to level 2 of this award.

19. The applicant worked primarily day or afternoon shift.

20. On June 1st 2015, the modification to the filling preparation process was effectively initiated in packaging room1 and the previous staffing levels would shortly no longer be required.”

[11] The evidence of Mr Riches satisfies the requirements of s.389(1)(a) of the Act.

[12] In relation to meeting the requirements of s.389(1)(b), Mr Riches’ evidence was that:

“21. In deciding making the applicant redundant, the Senior Management Team, reviewed:

a. the result of "Induction Training Competency Assessment", marked and attached "B",

b. "QF0001 Basic GMP Test for the applicant", marked and attached "C",

c. "TR0001 Training Record for the group in which the applicant was trained, marked and attached "D",

d. "QF0001 Basic GMP Test for the other members of the group in which the applicant was trained, marked and attached "E".

e. The verbal opinions and assessments of the applicant by the Senior Management Team from their work place dealings with the applicant.

22. The applicant score was just above the first quartile, the one other person scoring lower than the applicant has since been redeployed.

23. No opportunity to redeploy the applicant existed with in Bakery Fresh at the time, and a continuation of the workforce reduction meant that no opportunity was likely to arise at all.

24. On June 2nd 2015, I called a meeting with the applicant, by requesting his supervisor contact him, I also asked the supervisor to advise the applicant that he was entitled to bring a representative to the meeting, the said meeting was scheduled for June 3rd.

25. On June 3rd 2015 a meeting was conducted with the applicant at the Bakery Fresh facility, present at the meeting were:

a. The applicant,
b. Myself,
c. Mr Prashant Mohan,
d. Mr Shiv Kumar
e. Mr Lava Raj

26. During the June 3rd meeting, the following was explained to the applicant:

a. The planned changes to his work area,

b. The resultant change in manning requirements for the entire filling and packing process,

c. The need to reduce the head count to match this new manning requirement,
d. That based on the "Basic GMP Test Results", and other contributing factors, the business had decided that the most prudent cause of action was to make his position redundant and that he was not suitable for redeployment, and that no redeployment opportunity existed at that time.

e. That payment for redundancy would be applicable and that the business would met (sic) its obligation under the relevant award and "National Employment Standard".

f. That the applicant would continue to be paid for the current week, but was not required to attend work,

g. That the applicant should attend work the following day for the purpose of obtaining a letter setting out his entitlements, marked and attached "F" (I note that the letter is dated June 1s1, as this was the date at which it's drafting started).”

[13] The question which arises is whether the meeting on 3 June 2015 is consultation for the purposes of the consultation requirements of the Food, Beverage and Tobacco Manufacturing Award (the Award). Clause 9 of the Award provides as follows:

“9. Consultation

9.1 Consultation regarding major workplace change

(a) Employer to notify

(i) Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must notify the employees who may be affected by the proposed changes and their representatives, if any.

(ii) Significant effects include termination of employment; major changes in the composition, operation or size of the employer’s workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations; and the restructuring of jobs. Provided that where this award makes provision for alteration of any of these matters an alteration is deemed not to have significant effect.

(b) Employer to discuss change

(i) The employer must discuss with the employees affected and their representatives, if any, the introduction of the changes referred to in clause 9.1(a), the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees and must give prompt consideration to matters raised by the employees and/or their representatives in relation to the changes.

(ii) The discussions must commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in clause 9.1(a).

(iii) For the purposes of such discussion, the employer must provide in writing to the employees concerned and their representatives, if any, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees provided that no employer is required to disclose confidential information the disclosure of which would be contrary to the employer’s interests.

9.2 Consultation about changes to rosters or hours of work

(a) Where an employer proposes to change an employee’s regular roster or ordinary hours of work, the employer must consult with the employee or employees affected and their representatives, if any, about the proposed change.

(b) The employer must:

(i) provide to the employee or employees affected and their representatives, if any, information about the proposed change (for example, information about the nature of the change to the employee’s regular roster or ordinary hours of work and when that change is proposed to commence);

(ii) invite the employee or employees affected and their representatives, if any, to give their views about the impact of the proposed change (including any impact in relation to their family or caring responsibilities); and

(iii) give consideration to any views about the impact of the proposed change that are given by the employee or employees concerned and/or their representatives.

(c) The requirement to consult under this clause does not apply where an employee has irregular, sporadic or unpredictable working hours.

(d) These provisions are to be read in conjunction with other award provisions concerning the scheduling of work and notice requirements.”

[14] It is clear that on 3 June 2015 that the Respondent notified the Applicant of significant changes as required by clause 9.1(a) of the Award. The evidence of Mr Riches does not identify any “discussion” taking place with the Applicant on 3 June 2015 as required by clause 9.1(b) of the Award. However, the Applicant has made no contention that that there was no “discussion” as required by clause 9.1(b) of the Award.

[15] In the circumstances of the present matter the Commission is satisfied that the meeting between the Applicant and the Respondent on 3 June 2015 satisfies both requirements of clause 9.1 of the Award.

[16] On the evidence of Mr Riches the Commission is satisfied that redeployment of the Applicant was not reasonably available to the Respondent.

[17] Having considered all of the relevant material in this matter the Commission is satisfied and so decides that the dismissal of the Applicant was a case of genuine redundancy within the meaning of s.389 of the Act.

[18] The application in this matter is dismissed.

COMMISSIONER

Appearances:

The Applicanton his own behalf.

C. Riches for Bakery Fresh Pty Ltd.

Hearing details:

2015.

Melbourne:

December 18.

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