Stephen Gay v Gonzalez Steel Pty Limited

[2017] FWC 1385

[2017] FWC 1385

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stephen Gay
v
Gonzalez Steel Pty Limited
(U2016/14753)

COMMISSIONER SAUNDERS NEWCASTLE, 24 MARCH 2017

Application for an unfair dismissal remedy - jurisdictional objection - genuine redundancy – whether dismissal was harsh, unjust or unreasonable

[1] Mr Stephen Gay was employed by Gonzalez Steel Pty Limited (Gonzalez Steel) as a labourer for about six years prior to his dismissal on 22 November 2016. Gonzalez Steel contends that Mr Gay’s dismissal was a genuine redundancy within the meaning of s.389 of the Fair Work Act 2009 (Cth) (the Act). Mr Gay denies that his dismissal was a genuine redundancy and submits that he was dismissed harshly, unjustly and unreasonably.

[2] Mr Gay gave evidence in support of his case. Gonzalez Steel adduced evidence from Mr Frank Gonzalez, General Manager of Gonzalez Steel, Ms Alison Kelly, Human Relations Manager of Gonzalez Steel, Mr Kyle Paterson, Director of Training Wheels Pty Ltd (Training Wheels), Mr James McLaughlin, Boilermaker of Gonzalez Steel, and Mr Shayne Bailey, Assistant Production Manager of Algon Fabrication.

Initial matters to be considered

[3] I am required by s.396 of the Act to decide four matters before I consider the merits of Mr Gay’s application. There is no dispute between the parties and I am satisfied on the evidence that:

(a) Mr Gay’s application was made within the period required by s.394(2) of the Act;

(b) Mr Gay was a person protected from unfair dismissal; and

(c) Gonzalez Steel was not a “small business employer” as defined in s.23 of the Act, so that the Small Business Fair Dismissal Code was inapplicable.

[4] The fourth initial matter I need to consider is whether Mr Gay’s dismissal was a genuine redundancy. The parties are in dispute in relation to that issue.

Genuine redundancy

[5] Section 389 of the Act defines genuine redundancy as follows:

“(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.”

Job no longer required because of changes in operational requirements

[6] A job involves “a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employer’s organisation, to a particular employee”. 1

[7] Where there has been a reorganisation or redistribution of duties, the question is whether the employee has “any duties left to discharge”. 2 If there is no longer any function or duty to be performed by that person, his or her job becomes redundant.3

[8] An employee’s job may still be genuinely made redundant when there are aspects of the employee’s duties still being performed by other employees. 4 The test is whether the previous job has survived the restructure or downsizing, not whether the duties have survived in some form.5

[9] Gonzalez Steel conducts a structural steel fabrication and erection business. Gonzalez Steel works closely with two related companies: Algon Steel Pty Ltd (Algon Steel) and Algon Fabrication. All three entities essentially conduct one steel fabrication business. 6

[10] Gonzalez Steel’s business premises are located about a five minute drive away from Algon Steel’s business premises.

[11] Mr Gay worked primarily at Gonzalez Steel’s premises, although he did transport materials by truck from Gonzalez Steel’s premises to Algon Steel’s premises and worked at Algon Steel’s premises from time to time.

[12] Mr Gay’s job was as a labourer employed by Gonzalez Steel. His primary duties involved unloading metal plates delivered to Gonzalez Steel (including by using an overhead crane), grinding/cleaning the plates, repacking the metal plates and loading them onto a truck (including by using an overhead crane), and delivering them by truck to Algon Steel. The steel plates were unloaded at Algon Steel by forklift or crane. 7 Mr Gay was also given other duties such as moving steel around, loading/unloading trucks (including by using an overhead crane) and general labouring duties. Mr Gay spent most of his time grinding/cleaning metal plates.8 That work involved grinding the metal plates to remove sharp edges from the plates.9

[13] There is no dispute between the parties that a dogman ticket is not required for simple lifts using a crane, but it is required for more complicated lifts. 10 Mr Gay did not have a dogman ticket during his employment with Gonzalez Steel. That did not prevent him from using the overhead crane to undertake tasks such as unloading and loading material including the metal plates and some other items from trucks.

[14] Mr Gonzalez gave evidence, which I accept, that in October 2016 he decided that rather than have the metal plates delivered to Gonzalez Steel, ground/cleaned at Gonzalez Steel, and transported to Algon Steel, the metal plates should be delivered in bulk directly to Algon Steel, in order to avoid double handling. That is, the metal plates would only be unloaded once, at Algon Steel’s premises, and employees at Algon Steel would grind/clean the plates and then incorporate them directly into the work being undertaken. This change in the way work was performed removed the need for unpacking and packing the steel plates at Gonzalez Steel before they were transported to Algon Steel. Mr Gay was the person who did that work at Gonzalez Steel.

[15] Further, the work Mr Gay undertook in grinding/cleaning the metal plates was assigned to the apprentices and boilermakers after the change in operations. 11 The boilermakers grind/clean the metal plates before they use them in their fabrication work.12

[16] Mr Gonzalez also gave evidence, which I accept, that a new boilermaker employed by Algon Steel, Mr Lynch, was sent to Gonzalez Steel’s premises to work on a particular job for two or three weeks leading up to the hearing on 8 March 2017. 13 Because Mr Lynch was working at Gonzalez Steel during that time, a small number of metal plates were delivered to Gonzalez Steel’s premises for use by Mr Lynch on the job he was working on.14

[17] After the change to operations in about October 2016, the functions, duties and responsibilities entrusted to Mr Gay were either no longer required or were assigned to other employees. In particular, the grinding/cleaning of metal plates was assigned to apprentices and boilermakers, and the delivery of metal plates in bulk direct to Algon Steel meant there was no need to have a labourer such as Mr Gay at Gonzalez Steel’s premises unloading plates and then reloading them and transporting them to Algon Steel’s premises. The fact that a limited number of metal plates have recently been delivered to Gonzalez Steel’s premises to enable Mr Lynch to work on a particular project does not alter the fact that the change in operations has, for the most part, removed the need to unload and clean/grind metal plates at Gonzalez Steel. For these reasons, I am satisfied that Mr Gay’s employer no longer requires his job to be performed by anyone.

[18] I am satisfied that the decision to improve efficiency and reduce costs by having metal plates delivered in bulk to Algon Steel was, or gave rise to, a change in the operational requirements of Gonzalez Steel’s business. The bona fides of this change in operational requirements is supported by the following evidence:

(a) Mr Gay accepts that the job he was doing prior to his dismissal could have been done faster, 15 and the fact that he was required to do work other than clean/grind steel slowed things down and caused frustration;16

(b) Mr Gonzalez’ evidence that there was a genuine need to make changes in the workplace to improve efficiency and reduce costs; and

(c) Mr Bailey gave evidence that he did not personally make the decision to change the way work was performed, but he could “see the need to reduce numbers in that area”. 17

[19] I am also satisfied that there was the necessary causal connection between the changes in the operational requirements of Gonzalez Steel’s enterprise and the fact that Mr Gay’s employer no longer required his job to be performed by anyone. The delivery of metal plates in bulk directly to Algon Steel, in order to avoid double handling, meant that Mr Gay’s duties in unloading the metal plates at Gonzalez Steel, loading the plates at Gonzalez Steel on a truck (after they had been ground/cleaned), and delivering the metal plates by truck to Algon Steel were no longer required. Further, the decision to assign the grinding/cleaning of the metal plates to apprentices and boilermakers was as a consequence of the decision to have metal plates delivered in bulk direct to Algon Steel.

[20] For the reasons set out above, I am satisfied that Gonzalez Steel no longer requires Mr Gay’s job to be performed by anyone because of changes in the operational requirements of the employer's enterprise.

Consultation

[21] There is no dispute between the parties and I am satisfied that Mr Gay was covered by the Manufacturing and Associated Industries and Occupations Award 2010 (the Manufacturing Award) during his employment with Gonzalez Steel. Clause 9 of the Manufacturing Award imposes consultation obligations on an employer in particular circumstances. Clause 9 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 1.1(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 1.1(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
(c) 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.

(d) 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.

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

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

[22] Mr Gonzalez gave the following evidence in his first witness statement in relation to the discussions he had with Mr Gay concerning the decision to change the way work was performed at Gonzalez Steel and Algon Steel:

“12. On the 27^th of October 2016 I arranged for the Applicant to come into my office.

13. The Applicant came to my office with a work colleague.

14. I explained to the Applicant that due to changes in operational requirements that the position of labourer (his current position) was no longer required was going to be made redundant.

15. I further explained to the Applicant that Gonzalez was prepared to arrange and pay for training in order for the Applicant to obtain a crane ticket. I explained that this would provide the means for the Applicant to be redeployed at Gonzalez’ associated entity Algon.

16. I emphasised to the Applicant that this was the only option available to Gonzalez, and that if the Applicant did not obtain the crane ticket that the redeployment would not be possible and he would be terminated on account of redundancy.

17. The Applicant stated that he understood and accepted the proposal. I immediately arranged for Sam Falzon (the Applicant’s supervisor – Sam) to book the training course for the Applicant.”

[23] Mr Gay says that Mr Gonzalez spoke the following words to him during their discussion on 27 October 2016:

“The job at Gonzalez has been made redundant. It’s taking too long, we’re handling material too many times. We’re going to move Vortman [the cutting machine] down to Algon eventually. We need you to go for your dogman’s ticket, if you don’t do it we’ll have to sack you.”

[24] While there are some differences between the accounts given by Mr Gay and Mr Gonzalez in relation to their conversation on 27 October 2016, I am satisfied, based on the accounts set out in the previous two paragraphs, that the following messages were communicated by Mr Gonzalez to Mr Gay on 27 October 2016:

● a decision had been made to make Mr Gay’s position redundant;

● the reason for the decision to make Mr Gay’s position redundant was because the processes used at that time required the relevant materials to be handled too many times and, as a result, the process was taking too long; and

● Mr Gonzalez wanted to redeploy Mr Gay to another role. The only other role available required Mr Gay to obtain a dogman’s ticket. Gonzalez Steel was prepared to pay for the necessary training for Mr Gay to obtain a dogman’s ticket.

[25] Mr Gay was very reluctant to undertake the training to obtain a dogman’s ticket. I will explain the basis for his reluctance in that regard when I address the question of redeployment below.

[26] Mr Gay continued working for Gonzalez Steel from 27 October 2016 until he commenced the training course for a dogman’s ticket on 21 November 2016.

[27] There is no dispute between the parties and I am satisfied on the evidence that Gonzalez Steel made a definite decision in October 2016 to introduce major changes in production, program, organisation, structure or technology that were likely to have significant effects on employees. That decision was to have metal plates delivered in bulk to Algon Steel for the purpose of improving efficiency and reducing costs.

[28] Pursuant to clause 9.1 of the Manufacturing Award, Gonzalez Steel was required to:

(g) notify Mr Gay of the definite decision to introduce such changes;

(h) as soon as practicable after the definite decision was made, discuss with Mr Gay and his representatives, if any, the introduction of the changes, the effects the changes were likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees;

(i) give prompt consideration to matters raised by Mr Gay and/or his representatives in relation to the changes; and

(j) provide in writing to Mr Gay and his representatives, if any, all relevant information about the changes including the nature of the change is proposed, the expected effects of the changes on employees and any other matters likely to affect employees.

[29] Although Mr Gonzalez explained to Mr Gay on 27 October 2016 his decision to introduce changes to the way metal plates were delivered to and moved between the relevant worksites and the reasons for those changes, I am satisfied that Gonzalez Steel did not comply with its consultation obligations under the Manufacturing Award in relation to its definite decision to introduce changes to the workplace in October 2016. In particular, Gonzalez Steel:

(a) did not provide Mr Gay with any written information in relation to the changes including the nature of the change proposed, expected effects of the changes on Mr Gay and any other matters likely to affect him or other employees; and

(b) did not discuss with Mr Gay the effects the changes were likely to have on him and measures to avert or mitigate the adverse effects of such changes. Instead, Mr Gonzalez communicated to Mr Gay not only his decision to introduce changes to the way metal plates were delivered to and moved between the relevant worksites and the reasons for those changes, but also the fact that such changes would, as a matter of certainty, result in the redundancy of his position and would require him to obtain a dogman’s ticket if he wanted to remain employed by Gonzalez Steel or any of its related companies. Mr Gay was given no real opportunity to put forward alternative suggestions about how Mr Gonzalez’ efficiency and cost saving objectives could have been achieved or the effects of those changes on him, including measures to avert or mitigate the adverse effects of such changes.

Redeployment

[30] The word “redeployed” in section 389(2) of the Act should be given its ordinary and natural meaning, which is to “transfer to another job, task or function”. 18

[31] For the purposes of section 389(2) of the Act the Commission must find, on the balance of probabilities, that there was a job or a position or other work within the employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employee. There must be an appropriate evidentiary basis for such a finding. 19

[32] If an employer wishes to rely on the “genuine redundancy” exclusion in section 389 of the Act, then it would ordinarily be expected to adduce evidence, on the question of redeployment, as to whether there was a job or a position or other work within the employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employee. Such evidence would usually include the steps taken by the employer to identify other jobs, positions or work which could be performed by the dismissed employee. 20

[33] Whether it would have been reasonable in all the circumstances for the person to be redeployed directs attention to the circumstances which pertained when the person was dismissed. 21 However, the circumstances leading up to the time the employee was dismissed may, in particular cases (such as where there has been a redeployment period for an employee prior to their dismissal), be relevant to a determination of whether it would have been reasonable in all the circumstances for the employee to have been redeployed.22

[34] In determining whether redeployment was reasonable a number of matters may be relevant, including:

(a) whether there exists a job or position or other work to which the employee can be redeployed; 23

(b) the nature of any available position; 24

(c) qualifications required to perform the job; 25

(d) the employee’s skills, qualifications and experience. The employee should have the skills and competence required to perform the role to the required standard either immediately or within a reasonable period of retraining; 26 and

(e) the location of the job in relation to the employee’s residence and the remuneration which is offered. 27

[35] Where an employer decides that, rather than fill a vacancy by redeploying an employee into a suitable job in its own enterprise, it will advertise the vacancy and require the employee to compete with other applicants, it might subsequently be found that the resulting dismissal is not a case of genuine redundancy. 28

[36] It is important, however, to appreciate that, because there is a requirement to assess the reasonableness of redeployment “in all the circumstances”, it is not possible to establish binding rules concerning the application of section 389(2) of the Act in all cases irrespective of the circumstances of each particular case. 29

[37] In the present case, I accept Mr Gonzalez’ evidence that the only job or position to which Mr Gay could potentially have been redeployed with the enterprise of Gonzalez Steel or any of its associated entities was the position of dogman in Algon Steel’s fabrication workshop. There were no other positions available for someone with Mr Gay’s skills, qualifications and experience, even allowing for a reasonable period of retraining to obtain other skills or competencies. Mr Gonzalez’ evidence in this regard is supported by that of Mr Bailey. 30

[38] In order to undertake the role of dogman in Algon Steel’s fabrication workshop, I accept Mr Gonzalez’ evidence that it was necessary for Mr Gay to have a dogman’s ticket. Mr Gay had been using an overhead crane for many years, both at Gonzalez Steel and in his former job at OneSteel. He was able to do so because simple lifts and crane movements do not require a dogman’s ticket. However, more complex lifts require a dogman’s ticket, unless the employee is under the direct supervision of a licensed dogger. 31 Some dogging work, such as repetitive lifting, can be undertaken by a person without a dogman’s ticket if the lifting gear can be pre-determined by a competent person and set out in a safe work lifting procedure.32 The dogging work Mr Gonzalez wanted Mr Gay to do in Algon Steel’s fabrication workshop did not just involve simple lifts or the use of lifting gear that could be pre-determined; it involved a range of lifting work that reasonably required, in my view, an employee with a dogman’s ticket who could work without supervision by another licensed dogman.33

[39] The fact that Gonzalez Steel kept Mr Gay employed from 27 October 2016 until the commencement of his dogging training on 21 November 2016 and paid $1,000 for him to undertake that training course for five days demonstrates, in my view, that Mr Gonzalez genuinely wanted Mr Gay to be redeployed and remain working in the business.

[40] I accept without hesitation that Mr Gay was genuinely and understandably concerned about participating in and passing the dogging training course. The basis of Mr Gay’s concerns are set out in his witness statement, 34 and I do not wish to potentially embarrass him by repeating them here. They relate to health and literacy issues.

[41] Mr Gay attended the first day of the dogging training course on 21 November 2016. The training course was conducted by Training Wheels in its training site at Rutherford. There were six participants in the training course, including Mr Gay.

[42] One of the first tasks the participants in the training course were given was to copy questions and answers on to a piece of paper. Mr Gay found this task very difficult; he was much slower than the rest of the group. Mr Gay became embarrassed and stressed when the rest of the group was waiting for him to finish the task. Mr Gay reached a point where he felt it was just too much he could not keep going. He then had a conversation with the training instructor in words to the following effect:

Mr Gay: “That’s it.”

Instructor: “Are you sure you can’t do it?”

Mr Gay: “Yeah, I just can’t do it.”

Instructor: “There’s ways and means we can get you through it, there’s one-on-one training. I understand what you are going through. Someone I know had the same problem after chemo. Two out of five people struggle with training. I’ve even had one Manager walk out of the course.”

[43] Mr Gay then shook hands with the instructor and left the training before midday on the first day of the five day training course. 35 He called a supervisor from Algon Steel and told him that he could not do the training. The supervisor instructed Mr Gay to go home and return to work the next day.

[44] On 22 November 2016, Mr Gay attended work. There is a dispute about whether Mr Gay had a discussion with Ms Kelly, Human Relations Manager, on 22 November 2016. Mr Gay does not recall having a discussion with Ms Kelly on that day. 36 Ms Kelly included the following in her witness statement in relation to the conversation she says she had with Mr Gay on 22 November 2016:

“5. On 22 November 2016 at about 9:30am I spoke with the Applicant’s supervisor (Mr Shayne Bailey) and he informed me that the Applicant had walked out of the training session early in the previous morning and had not returned to the course. The Applicant had subsequently turned up to work that morning of 22 November.

6. At about 10am, I telephoned the Applicant to discuss the situation.

7. I asked the Applicant why he had left the training course and not returned. The Applicant told me that he was very anxious about the training and had problems with concentrating.

8. I attempted to encourage the Applicant to return to the training course. I said words to the effect:

8.1 ‘I am sure you are quite capable of doing the training, you are a lot more intelligent than you give yourself credit for. Are you sure you don’t want to just give it another go?’

9. The Applicant replied:

9.1 ‘No, I just can’t.’

10. I continue to try and encourage the Applicant to return to the training program. I said words to the effect:

10.1 ‘If you try and stick it out for the week you might find it gets easier for you. Do you want me to talk to your trainer to see if there is anything they can do to help?’

11. The Applicant replied with words to the effect:

11.1 ‘I don’t want to go back, it’s not for me. I’m too old for that shit, I really am you know.’

12. I asked the Applicant if there was anything else I could do to try and help him get through the training.

13. The Applicant said words to the effect:

13.1 ‘No, I’m not interested in finishing the training.’

14. The Applicant thanked me for my encouragement and support on the telephone call ended.

15. Subsequent I spoke with Frank Gonzalez (General Manager of the Respondent) and we discussed my previous telephone call with the Applicant. Frank instructed me to draft a ‘Termination on account of Redundancy’ letter which was to be issued to the Applicant that day.”

[45] In her oral evidence, Ms Kelly confirmed that the content of her witness statement was true and correct. It was put to Ms Kelly in cross examination that Mr Gay had said in his witness statement that he did not speak to Ms Kelly on 22 November 2016. Ms Kelly maintained her position that she had a conversation with Mr Gay on 22 November 2016 in words to the effect of those set out in her witness statement.

[46] I prefer Ms Kelly’s evidence over Mr Gay’s evidence in relation to this issue and find, on the balance of probabilities, that Ms Kelly had a conversation with Mr Gay on 22 November 2016 in words to the effect of those set out in her witness statement. I make that finding for the following reasons:

(a) First, the account given by Ms Kelly of the conversation is quite detailed. It is unlikely that she is mistaken about whether or not she had such a conversation with Mr Gay. Further, I found Ms Kelly to be a reliable and truthful witness. She answered the questions put to her in cross examination in a direct and responsive manner. I do not believe she made up the conversation with Mr Gay. Ms Kelly seemed sympathetic towards Mr Gay. So much is clear from the fact that she agreed to help Mr Gay put his resume together and assist him to find an alternative job following his dismissal. 37 That is consistent with her evidence that she offered to help Mr Gay get through the training course; and

(b) Secondly, Mr Gay was worried on 22 November 2016 that he might lose his job. 38 That is what in fact did happen. The news of Mr Gay’s dismissal would, no doubt, have caused him stress. He had been through a stressful and upsetting day on the previous day at the training course. He also accepts that his medical difficulties can affect his short-term memory and ability to focus.39 Although I found Mr Gay to be an honest witness, the matters to which I have referred in this subparagraph lend weight to the prospect that Mr Gay has forgotten about his discussion with Ms Kelly on 22 November 2016.

[47] At about 2:15pm on 22 November 2016, Mr Bailey provided Mr Gay with his letter of termination.

[48] It is submitted on behalf of Mr Gay that Gonzalez Steel should have arranged and paid for one-on-one dogman training to be provided to Mr Gay. It is submitted that such training would have cost $6,000, on the basis that Mr Gay’s position on the training course cost Gonzalez Steel $1,000 and he was one of six participants in the training course.

[49] The short answer to this point is that, even on Mr Gay’s own evidence, he was offered one-on-one training by the instructor on 21 November 2016 before he quit the training course, and he did not take up that offer or give any indication that he was prepared to do so. 40 Further, Mr Gay was offered the opportunity to stay back after the conclusion of the training course at 3pm each day for one-on-one tuition.41 Because he left the training course before midday on the first of five days of the course, he did not give himself the chance to see whether such assistance could have helped him get through the course. In my view, it would be unreasonable to require an employer such as Gonzalez Steel to pay in the vicinity of $6,000 to provide Mr Gay with a one-on-one training course for the purpose of assisting him to obtain a dogman’s ticket in circumstances where he was offered substantial assistance by the training instructor on 21 November 2016, including in one-on-one sessions at the end of each day of training, and Mr Gay did not last more than half a day in the course. If Mr Gay had remained in the course for the whole five days, or at least a substantial proportion of it, and the view had then been formed that he needed special tuition beyond that already offered to him to assist him to try to pass the course, it might have been reasonable for Gonzalez Steel to pay the cost of such additional tuition. However, Mr Gay’s departure from the course part way through day one meant that possibility did not arise.

[50] Mr Gay also submits that he might have been able to get through the dogman training course if he had been given the opportunity to take the materials away and read and study them in his own time. Mr Gay was taken by his supervisor to the Training Wheels training site at Rutherford on about 28 October 2016. Mr Gay was shown the training facility and the course outline was described to him. 42 Mr Gay explained to Mr Paterson his concerns about the training. Mr Paterson says he provided a copy of the training manual to Mr Gay.43 Mr Gay says that his supervisor asked Mr Paterson for a copy of the training materials prior to the commencement of the course and Mr Paterson told them they could not take any paperwork until the course was paid for.44 I prefer Mr Paterson’s evidence over Mr Gay’s evidence in relation to this issue for the following reasons:

(a) First, Mr Gay says he was eager to get the training materials prior to the commencement of the training course. Even on Mr Gay’s own evidence, he was, in effect, told that he could get the materials once the course was paid for. Notwithstanding that, there is no suggestion in the evidence that Mr Gay made any further enquiries between 28 October 2016 and 21 November 2016 about whether Gonzalez Steel had paid for the course or when it would make the payment. If the issue was so significant to Mr Gay and he had not received any materials on 28 October 2016, I consider it likely he would have followed up on the issue in the period of more than 3 weeks prior to the commencement of the course;

(b) Secondly, on Mr Gay’s own evidence, on 21 November 2016 the training instructor offered to help Mr Gay get through the course by a variety of “ways and means” before Mr Gay left the course. If the provision of training materials to take away and study was, in Mr Gay’s mind, the major impediment preventing Mr Gay getting through the course and he did not have such materials available for him to study, it is likely, in my view, that Mr Gay would have raised that issue with the trainer before leaving the course;

(c) Thirdly, on the basis of my findings set out above, on 22 November 2016 Ms Kelly asked Mr Gay if there was anything she could do to assist, including by speaking to the trainer to see if there was anything they could do to help. Mr Gay did not make any reference in his response to Ms Kelly to his need or desire to take away training materials to study; 45 and

(d) Fourthly, Mr Gay accepts that his medical difficulties can affect his short-term memory and ability to focus. 46

[51] I am satisfied that Gonzalez Steel took reasonable steps to have Mr Gay trained as a dogman so that he could be redeployed to the position of dogman in Algon’s fabrication workshop. In summary, my reasons for reaching that conclusion are as follows:

(a) Gonzalez Steel kept Mr Gay employed from 27 October 2016 to 21 November 2016 to enable him to undertake the dogman training course;

(b) Gonzalez Steel paid $1,000 for Mr Gay to undertake the course;

(c) Mr Gay was taken to the training facility by his supervisor on 28 October 2016 so that he could look at the facility and speak to the owner of the training company;

(d) Mr Gay was repeatedly told by various managers employed by Gonzalez Steel or Algon Steel that they wanted him to get his dogman’s ticket and there were different ways they could assist to get him through the training; 47

(e) the training instructor offered to assist Mr Gay in a variety of ways before Mr Gay left the course on 21 November 2016;

(f) Mr Gay only lasted half a day into a five day training course. In my view, even though Mr Gay was genuinely finding the course difficult and stressful, it would have been reasonable for him to stay for at least the first 2-3 days of the training course and take up the additional help offered by the training instructor before making a decision as to whether or not to quit the course. That is particularly so in circumstances where Mr Gay had been able, with difficulty and persistence in the past, to successfully obtain a range of qualifications, including a crane chaser’s ticket, a front end loader ticket, an open class forklift ticket, a bridging gantry ticket, a pendant control crane ticket, a heavy rigid truck license, and an elevated work platform ticket; 48 and

(g) Ms Kelly offered to help Mr Gay in a range of ways on 22 November 2016. Mr Gay made it plain to Ms Kelly that he was not willing to take up her offers of help, nor was he interested in finishing the training.

[52] For the reasons set out above, I find that it would not have been reasonable in all the circumstances for Mr Gay to be redeployed with the enterprise of Gonzalez Steel or any of its associated entities.

Conclusion on genuine redundancy

[53] I am satisfied that the requirements of s.389(1)(a) and (2) have been met by Gonzalez Steel. However, Gonzalez Steel did not comply with all its obligations in the Manufacturing Award to consult with Mr Gay about the redundancy (s.389(1)(b) of the Act). It follows that Mr Gay’s dismissal was not a case of genuine redundancy within the meaning of s.389 of the Act.

Harsh, Unjust or Unreasonable

[54] Because Mr Gay’s dismissal was not a genuine redundancy within the meaning of s.389 of the Act, I must take into account, in determining whether the dismissal was harsh, unjust or unreasonable, the matters set out in s.387 of the Act.

s.387(a) – valid reason related to capacity or conduct

[55] If an employee has been dismissed because of changes to the operational requirements of their employer’s enterprise, the reason for the dismissal will not be related to the employee’s capacity or conduct. It follows that, in those circumstances, there will not be a valid reason for the dismissal related to the employee’s capacity or conduct, and s.387(a) should be regarded as a neutral matter with respect to the question of whether the dismissal was harsh, unjust or unreasonable. 49

[56] However, if the employee was dismissed because of changes to the operational requirements of their employer’s enterprise and it was not reasonable in all the circumstances for the employer to redeploy him or her, they are matters which should be considered under s.387(h) of the Act and are telling against a conclusion that the dismissal was harsh, unjust or unreasonable. 50

[57] For the reasons set out above, I am satisfied that Mr Gay was dismissed because of changes to the operational requirements of Gonzalez Steel’s enterprise. Accordingly, s.387(a) is a neutral factor in this case.

s.387(b) – notification of reason

[58] Section 387(b) relates to notification of “that reason”, being a reason related to the person’s capacity or conduct. 51

[59] Because the reason for the termination of Mr Gay’s employment was the redundancy of his job and such a reason is not related to his capacity or conduct, s.387(b) is a neutral factor in relation to the question of whether Mr Gay’s dismissal was harsh, unjust or unreasonable. 52

s.387(c) – opportunity to respond

[60] Section 387(c) is also predicated on there being a reason for dismissal related to the capacity or conduct of the employee. 53

[61] It follows that s.387(c) is a neutral factor in relation to the question of whether Mr Gay’s dismissal was harsh, unjust or unreasonable. 54

s.387(d) – support person

[62] Gonzalez Steel did not unreasonably refuse to allow Mr Gay to have a support person present to assist at any discussions relating to his dismissal. Accordingly, s.387(d) is a neutral factor in relation to the question of whether Mr Gay’s dismissal was harsh, unjust or unreasonable. 55

s.387(e) – warning about unsatisfactory performance

[63] Mr Gay’s dismissal did not relate to any unsatisfactory performance by him. It follows that s.387(e) is also a neutral factor in relation to the question of whether Mr Gay’s dismissal was harsh, unjust or unreasonable. 56

s.387(f)&(g) – size of enterprise and dedicated human resource management specialists

[64] Gonzalez Steel is a relatively small employer. However, it has the benefit of a dedicated human resource management specialist, Ms Kelly. I do not consider that either of these factors would be likely to impact on the procedures followed in effecting Mr Gay’s dismissal. I will treat s.387(f)&(g) as neutral considerations in relation to the question of whether Mr Gay’s dismissal was harsh, unjust or unreasonable.

s.387(h) – other relevant matters

[65] Mr Gay was employed by Gonzalez Steel for about six years. He had an exemplary employment record with Gonzalez Steel. This weighs in Mr Gay’s favour, as does the fact that the financial impact of Mr Gay’s dismissal has been very hard on him and his family. He has not found alternative employment and his wife has had to work additional shifts to try to meet their financial commitments. Mr Gay’s age, regional location, lack of trade qualifications, as well as his health and literacy difficulties, will make it difficult for him to obtain alternative employment.

[66] Mr Gay was notified of the reasons for the termination of his employment, both orally and in writing. However, he was told as a fait accompli that his position was being made redundant. He was also told about his dismissal on 22 November 2016 without first being given an opportunity to respond to the proposal that he be dismissed, or the reasons for the dismissal. These aspects of the dismissal and the process leading up to it gave rise to some procedural unfairness. This weighs in support of Mr Gay’s submission that he was unfairly dismissed.

[67] There were sound, defensible and well-founded reasons for Mr Gay’s dismissal, namely Gonzalez Steel no longer required Mr Gay’s job to be performed by anyone because of changes to the operational requirements of Gonzalez Steel’s enterprise. Those changes were, in my view, both rational and justified; they were made in a bona fide attempt to improve efficiency and reduce costs. 57 Coupled with that is the fact that Gonzalez Steel genuinely wanted to retain Mr Gay as an employee and it made reasonable efforts to have Mr Gay retrained so that he could be redeployed. On termination, Gonzalez Steel paid Mr Gay his entitlements to notice and redundancy pay under the Act.58 These matters are telling against a conclusion that the dismissal was harsh, unjust or unreasonable.59

[68] Gonzalez Steel’s material failure to comply with its consultation obligations under the Manufacturing Award is also a relevant matter which should be considered pursuant to s.387(h) of the Act. 60 However, a failure to consult does not necessarily mean a dismissal was harsh, unjust or unreasonable.61 The weight to be given to a failure to consult depends primarily on the degree to which, if any, the absence of proper consultation led to any unfairness in practice.62

[69] As was the case in decisions such as Maswan (at [39]) and Smith v Alice Care Care Centre Pty 63(at [53]), I am satisfied in the particular circumstances of this case that if consultation in accordance with the requirements of the Manufacturing Award had occurred, “it would have made no difference to the ultimate outcome”64 – Mr Gay would still have been terminated for redundancy on the basis of Gonzalez Steel’s genuine operational requirements. That is, even if Gonalez Steel had provided the relevant information to Mr Gay in writing and given him a meaningful opportunity to put forward alternative suggestions about how Mr Gonzalez’ efficiency and cost cutting objectives may have been achieved or the effects of those changes on him, including measures to avert or mitigate the adverse effects of such changes, I am satisfied that the outcome would have been the same. Mr Gonzalez was tested in cross examination in these proceedings about the need for the changes he implemented, the reasons for those changes and the effects of them, including the requirement that Mr Gay undertake dogging training. Having considered Mr Gonzalez’ evidence in relation to those matters and the logic and rationale for his decisions, I am satisfied in this case that further consultation would not have changed Mr Gonzalez’ mind. In addition, given the genuine offers of assistance from the training instructor and a range of managers employed by Gonzalez Steel or one of its associated entities to help Mr Gay get through the dogging training, I am satisfied that further consultation in relation to dogging training or how it might have been provided would not have altered the outcome in this case.

[70] In addition, even if there had been further consultation with Mr Gay after 27 October 2016 and before a final decision was made to make Mr Gay’s position redundant, I am satisfied that the additional consultation would have taken place between 28 October 2016 and the date of Mr Gay’s dismissal, 22 November 2016. It follows, in my view, that further consultation would not have pushed back Mr Gay’s date of dismissal and the absence of proper consultation has not resulted in any unfairness in practice.

Conclusion

[71] After considering each of the matters specified in s.387 of the Act, I am satisfied that Gonzalez Steel’s dismissal of Mr Gay was not harsh, unjust or unreasonable. Mr Gay’s unfair dismissal application is therefore dismissed.

COMMISSIONER

Appearances:

Ms L Saunders of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), appeared for the Applicant

Mr M Weightman, of Counsel, appeared for the Respondent instructed by Mr T Burke, solicitor of Keystone Lawyers

Hearing details:

2017

Newcastle

March 8

 1   Jones v Department of Energy and Minerals (1995) 60 IR 304 (“Jones”) at 308 per Ryan J; applied in Ulan Coal Mines Ltd v Howarth (2010) 196 IR 32 (“Ulan Coal 1”) at [17]

 2   Jones at 308; Ulan Coal 1 at [17]

 3   Jones at 308; Ulan Coal 1 at [17]

 4   Dibb v Commissioner of Taxation (2004) 136 FCR 388 at 404-5

 5   Kekeris v A. Hartrodt Australia Pty Ltd t/a a.hartrodt [2010] FWA 3126 at [27], per Hamberger SDP

 6   PN132-3

 7   PN195

 8   PN562

 9   PN666-7

 10   PN600-602

 11   PN187-8 & PN534

 12   PN164-175

 13   PN150-178

 14   PN179

 15   PN661

 16   PN662

 17   PN530

 18   Technical and Further Education Commission trading as TAFE NSW v Pykett[2014] FWCFB 714 (TAFE) at [25]

 19   TAFE at [36]

 20   TAFE at [36]-[37]; Teterin & Ors v Resource Pacific Pty Ltd t/a Ravensworth Underground Mine[2014] FWCFB 4125 (Teterin) at [28]-[29]

 21   TAFE at [24] & [35]; Ulan Coal Mines v Honeysett (2010) 199 IR 363 (Ulan Coal) at [28]

 22   Bhalla v Welltech Total Water Management[2014] FWC 7565 at [55]

 23   Ulan Coal at [28]

 24   Ulan Coal at [28]

 25   Ulan Coal at [28]

 26   Ulan Coal at [28] & [34]

 27   Ulan Coal at [28]

 28   Ulan Coal at [34]

 29   Teterin at [35]

 30   Exhibit R6 at [5]

 31   Exhibit R2 at Annexure A; PN519-522; PN602-3

 32   Ibid

 33   Exhibit R1 at [15]-[16] and Annexure A; Exhibit R2 at [14]-[15]; Exhibit R6 at [5], [9]-[11]; PN204-5, 216, 243-4, 266-8 & 524

 34   Exhibit A1, particularly at [1]-[36]

 35   PN712

 36   PN736

 37   PN412-3

 38   PN744

 39   Exhibit A1 at [8]

 40   Exhibit A1 at [32]-[33]

 41   PN723-4

 42   PN1103-4

 43   Exhibit R3 at [6]; PN357-9

 44   PN1127

 45   See paragraph [44] above

 46   Exhibit A1 at [8]

 47   Exhibit A1 at [19]-[25]; PN633-697

 48   Exhibit A1 at [9]

 49   UES (Int’l) Pty Ltd v Harvey[2012] FWAFB 5241 (UES) at [42]; Ventyx Pty Ltd v Murray[2014] FWCFB 2143 (Ventyx) at [142]

 50   UES at [33] & [47]

 51   UES at [43]; Ventyx at [143]

 52   UES at [43]; Ventyx at [143]

 53   UES at [43]; Ventyx at [144]

 54   UES at [43]; Ventyx at [144]

 55   UES at [44]

 56   UES at [45]; Ventyx at [146]

 57   Maswan v Escada Textilvertrieb t/as Escada[2011] FWA 4239 (Maswan) at [37]

 58   Maswan at [38]

 59   UES at [33] & [47]; Ventyx at [149]-[150]

 60   UES at [48]

 61   UES at [49]; Maswan at [39]; Ventyx at [151]-[162]

 62   Gomes v OE & DR Pope Pty Ltd[2014] FWC 8342 at [59] per Hampton C

 63   Ltd [2013] FWC 9093 (Alice Car Care Centre)

 64   Alice Car Care Centre at [53]

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