Smith v Onesteel Limited

[2013] NSWDC 18

District Court

New South Wales

Medium Neutral Citation:	Smith v Onesteel Limited & Anor [2013] NSWDC 18
Hearing dates:	12/03/2013 - 14/03/13
Decision date:	15 March 2013
Jurisdiction:	Civil
Before:	Elkaim SC DCJ at Newcastle
Decision:	Judgment for the plaintiff against the second defendant for $153,316.39
Catchwords:	Redundancy payments, acceptable alternative employment.
Legislation Cited:	Fair Work Act 2009
Cases Cited:	Clothing & Allied Trades Union of Australia v Hot Tuna Pty Ltd (1988) 27 IR 226 Kucks v CSR Ltd (1996) 66 IR 182 Central Norseman Gold Corp Ltd v Kempton [2010] FWA 5316 National Union of Workers v Linfox Australia Pty Ltd [2008] AIRC 647 Von Bibra Robina Autovillage Pty Ltd (C2007/2676) UXC Connect v Moore [2012] FWA 4296
Category:	Principal judgment
Parties:	Kelvin Smith (Plaintiff) Onesteel Limited (First Defendant) Commonwealth Steel Company Pty Ltd (Second Defendant)
Representation:	P J Bambagiotti (Plaintiff) T Saunders (Defendants) Thomas Mitchell Solicitors (Plaintiff) Herbert Smith Freehills (Defendants)
File Number(s):	2011/00358212
Publication restriction:	No

Judgment

1. The plaintiff was born in 1954. He commenced work with the second defendant in 1978 as a labourer. Over time, and with on the job training and experience, he became a furnace operator. He achieved this position in the early 1990s.

1. The plaintiff says he was made redundant in November 2010. This action is a claim for redundancy payments that he says he should have received.

1. The parties agreed that the jurisdiction exercised by the court was conferred by the Fair Work Act 2009. For present purposes, the only practical implication of this jurisdiction concerns the awarding of costs in accordance with Section 570 of this Act.

1. The parties also agreed that the second defendant employed the plaintiff. Accordingly the first defendant is not relevant to the proceedings. I will refer to the second defendant as "the defendant".

1. The defendant denies the plaintiff's entitlement to redundancy payments.

1. The plaintiff's contract of employment was oral but as at 2010 was governed by an Award (Exhibit A). The redundancy provisions are at page 32 of the Award.

1. The plaintiff relied on his own affidavit sworn on 19 June 2012. The defendant relied on the affidavit of Mr Paul Berthold sworn on 12 July 2012 and on the affidavits of Mr Kevin Roberts, sworn on 12 July 2012 and 6 March 2013 respectively. All of the deponents were cross-examined.

1. There is no dispute that in June or July of 2010 the furnace operators were told that due to a lack of work there would need to be some operational changes. Initially the plaintiff was given some extra duties outside the furnace section with which he coped and caused him no concern. He was still primarily a furnace operator.

1. In late October 2010, however, the plaintiff was told that he was to be transferred to the "Railway finishing line" which is an entirely separate section of the defendant's business to the furnace section. Most of the work in the finishing line, according to the plaintiff, concerned the painting of railway wheels plus…