Stephen Turley v David Moss Corporation Pty Ltd

[2021] FWC 377

[2021] FWC 377

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stephen Turley
v
David Moss Corporation Pty Ltd
(U2020/8138)

COMMISSIONER WILLIAMS PERTH, 28 JANUARY 2021

Application for an unfair dismissal remedy.

[1] This decision concerns an application made by Mr Stephen Turley (Mr Turley or the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The application was lodged on 12 June 2020. The Respondent is David Moss Corporation Pty Ltd (the Respondent).

[2] The Respondent objects to the application on the ground that the dismissal was a case of genuine redundancy, and so, by virtue of section 385 of the Act the Applicant’s dismissal cannot be found to have been unfair.

[3] At the hearing of this matter the Applicant gave evidence on his own behalf. Mr Timothy Moss, the Respondent’s General Manager, also gave evidence.

Factual findings

[4] The Respondent is a manufacturer and supplier of polyvinyl chloride (PVC) and polyethylene (PE) pipe and fittings and of custom engineered fittings and spools. The Respondent’s clients are predominantly in the mining, industrial, civil utilities, government, and agricultural sectors.

[5] The Applicant had been employed since 2014 and, at the time of his dismissal, was working as the Respondent’s Logistics Controller.

[6] On 8 June 2020, the Applicant was dismissed from his employment during a meeting with the Respondent’s General Manager, Mr Timothy Moss.

[7] The Applicant was provided with a letter of termination on the same date which is set out below:

“Termination of your employment by reason of redundancy

The purpose of this letter is to confirm the outcome of a recent review by David Moss Corporation Pty Ltd (the employer) of its operational requirements, and what this means for you.

As a result of recent change in company's operational requirements, and the company being unable to offer a suitable alternative role, the position of Logistics Coordinator is no longer needed. Regrettably this means your employment will terminate. This decision is not a reflection on your performance.

Your employment will end immediately. Based on your length of service, your notice period is 5 (five) weeks. Instead of receiving that notice, you will be paid the sum of $9,326.91 plus the redundancy entitlement set out below.

Due to your employment ending because of redundancy, you will also be paid redundancy pay of $20,519.20 in accordance with your Contract of Employment. This amount represents 11 (Eleven) weeks' pay which is based on your 6 (Six) years of service.

You will also be paid your accrued entitlements and any outstanding pay up to and including your last day of employment and superannuation.

You may seek information about minimum terms and conditions of employment from the Fair Work Ombudsman. If you wish to contact them you can call 13 13 94 or visit their website at

We thank you for your valuable contribution during your employment with us and wish you all the best for the future.”

[8] The Applicant’s evidence is that on 8 June 2020 he was called into a meeting with Mr Moss who told him his position was being made redundant and gave him a copy of the termination letter.

[9] The Applicant says he was told by Mr Moss that he was the bearer of bad news and he promptly gave him the letter.

[10] The Applicant says he was not distressed during the meeting because he was prepared for what Mr Moss was going to do as he had been expecting this ever since Mr Moss employed a Mr Bennett in September last 2019 and gave him a large proportion of his work load.

[11] His evidence was that Mr Moss advised him that he may be able to ask other departments if they had any opportunities, but he had nothing to give the Applicant at that point in time.

[12] At the meeting with Mr Moss, the Applicant did agree that it was a good idea for him not to work his notice period as he was completely demoralised because of the way his dismissal was handled.

[13] The Applicant denies there was any discussion during this meeting about possible employment in a forklift role.

[14] The Applicant says that despite having extensive experience in all facets of warehousing, receivals, despatch, and administrative duties the company continued, up to his dismissal and after his dismissal, employing casual labour in these areas.

[15] The Applicant’s evidence is that after his employment ended he had discussions with four sales consultants, on August 7 and 14 2020, who advised that the warehouse staff were doing the majority of his role.

[16] The evidence of Mr Moss was that on June 8 2020 he met with the Applicant to discuss the current business necessity to change the logistic department to ensure the business remained competitive and efficient.

[17] One of the changes was that the Applicant’s role was to be made redundant because the functions of this role could be managed by other people within sales and the warehouse department which would streamline and ensure information was communicated efficiently.

[18] Mr Moss explained the functions the Applicant was previously performing and how after his dismissal these were all distributed across multiple departments.

[19] Mr Moss denies that the decision to make the Applicant’s position redundant was in any way personal. His evidence was that in September 2020, after the Applicant’s position was made redundant, further structural changes were made which resulted in Mr Bennett’s position being made redundant as well.

[20] Mr Moss’s evidence is that he asked the Applicant if they would be interested in a forklift job that was available, to which the Applicant said no. I note this part of the conversation is denied by the Applicant.

[21] On balance, I prefer the Applicant’s evidence on this point and find there was no discussion about forklift positions during the meeting.

[22] Separately, for completeness, I note that the Applicant did not, in his evidence, state there was a vacant forklift position which the Respondent needed to fill which he could have been redeployed to.

Submissions

[23] The Applicant submits that he believes the decision to make his position redundant was based on a personal level rather than a professional level.

[24] The Applicant argues that he should have been offered other work that he had the experience to do which the Respondent was employing casuals to do.

[25] The Respondent submits that what occurred was a genuine redundancy within the meaning of section 389 of the Act and so the Applicant cannot have been unfairly dismissed.

The legislation

[26] Section 385 of the Act prescribes that a person has not been unfairly dismissed if their dismissal was a case of genuine redundancy. This section is set out below.

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair

Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.”

[27] Section 389 of the Act prescribes the meaning of genuine redundancy and this is set out below.

“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.”

Consideration

[28] The first matter to be considered and determined by the Commission, is whether or not the Applicant’s dismissal was a case of genuine redundancy within the meaning of section 389 of the Act.

[29] On the evidence, it is clear that the Respondent did make changes within the business so that the functions or duties that the Applicant had been carrying out were redistributed to other employees.

[30] Previous decisions of this Commission, including the Full Bench decision in Ulan Coal Mines Limited v Henry Jon Howarth and others, have considered the question of the reorganisation of, or redistribution of, duties and whether this falls within the meaning of a genuine redundancy. 1 In this decision the Full Bench found as follows:

“[16] The Explanatory Memorandum to the Fair Work Bill 2008 provides examples as to when a dismissal will be a case of genuine redundancy:

“1547 Paragraph 389(1)(a) provides that a person’s dismissal will be a case of genuine redundancy if his or her job was no longer required to be performed by anyone because of changes in the operational requirements of the employer’s enterprise. Enterprise is defined in clause 12 to mean a business, activity, project or undertaking.

1548 The following are possible examples of a change in the operational requirements of an enterprise: a machine is now available to do the job performed by the employee;

the employer’s business is experiencing a downturn and therefore the employer only needs three people to do a particular task or duty instead of five; or

the employer is restructuring their business to improve efficiency and the tasks done by a particular employee are distributed between several other employees and therefore the person’s job no longer exists.”

[17] It is noted that the reference in the statutory expression is to a person’s “job” no longer being required to be performed. As Ryan J observed in Jones v Department of Energy and Minerals (1995) 60 IR 304 a job involves “a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employees’ organisation, to a particular employee” (at p. 308). His Honour in that case considered a set of circumstances where an employer might rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly-created positions. In these circumstances, it was said that:

“What is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the re-organisation, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position becomes redundant…” (at p.308)

This does not mean that if any aspect of the employee’s duties is still to be performed by somebody, he or she cannot be redundant (see Dibb v Commissioner of Taxation (2004) FCR 388 at 404-405). The examples given in the Explanatory Memorandum illustrate circumstances where tasks and duties of a particular employee continue to be performed by other employees but nevertheless the “job” of that employee no longer exists.

[18] In Kekeris v A. Hartrodt Australia Pty Ltd [2010] FWA 674 Hamberger SDP considered whether a dismissal resulting from the restructure of a supervisory team was a case of genuine redundancy. As a result of the restructure, four supervisory team leader positions were replaced by three team leader positions. The Senior Deputy President said:

“When one looks at the specific duties performed by the applicant prior to her termination they have much in common with those of two of the new positions in the new structure. The test is not however whether the duties survive. Paragraph 1548 of the explanatory memorandum makes clear that it can still be a ‘genuine redundancy’ where the duties of a previous job persist but are redistributed to other positions. The test is whether the job Previously performed by the applicant still exists.” (at par [27])”

[31] From the above, it is clear that a job is a collection of functions or duties done by a particular employee. Where there has been a reorganisation or redistribution of duties the employee may still be genuinely made redundant when there are aspects of the employee’s duties still being performed by other employees. The test is whether the previous job has survived the restructure rather than whether the duties have survived in some form.

[32] In this case, the Applicant’s duties had been moved to other employees and so the particular job he had been doing was no longer required after this redistribution.

[33] I am satisfied on the evidence before the Commission, that the Applicant’s job was no longer required by the Respondent to be performed by anyone because of changes in the Respondent’s operational requirements.

[34] There is no suggestion that the Applicant’s employment was subject to a modern award or an enterprise agreement.

[35] With respect to whether it would have been reasonable in all the circumstances for the Applicant to have been redeployed the Respondent’s position is that there was no other suitable employment for him at the time. The evidence of the Applicant is that the Respondent continued to employ casuals to do work in the warehouse that he was capable of doing because he had extensive experience in all facets of these roles.

[36] The case law on the issue of redeployment requires that there must be an evidentiary basis for the Commission to find that there was in existence, at the time, a job or a position or other work to which the employee could have been redeployed.  2

[37] In this case, the Applicant’s evidence was not that there was a vacant job or position but rather there was work being done in the warehouse that he was capable of doing which was being done by casual employees. It is however the Respondent’s decision as to how it staffs its operation. There was no requirement in this case for the Respondent to end the employment of casual employees in order to create a vacancy which would then be offered to the Applicant as redeployment.

[38] In all the circumstances, I do not accept that it would have been reasonable for the Applicant to have been redeployed.

Conclusion

[39] I am satisfied on the evidence that the dismissal of the Applicant was a case of genuine redundancy within the meaning of section 389 of the Act.

[40] Consequently, by virtue of section 385 of the Act, the Applicant is not a person who has been unfairly dismissed.

[41] As a result, I am obliged to dismiss this application and an order [PR726432] to that effect will now be issued.

Appearances:

S Turley, Applicant
T David-Moss on behalf of the Respondent

Hearing details:

2020.
Perth:
October 6

Printed by authority of the Commonwealth Government Printer

<PR726431>

 1   [2010] FWAFB 3488.

 2   [2014] FWCFB 714 at [36].