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Suridge v Boral Window Systems Pty Ltd T/A Dowell Windows

Suridge v Boral Window Systems Pty Ltd T/A Dowell Windows

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Case Copied 6 July 2012 46 min read

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[2012] FWA 3126

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr James Suridge
v
Boral Window Systems Pty Ltd T/A Dowell Windows
(U2011/14031)

COMMISSIONER HAMPTON

ADELAIDE, 6 JULY 2012

Termination of employment - jurisdiction - whether genuine redundancy - outsourcing of maintenance function - whether job no longer required - whether due to operational reasons - whether consultation requirements met - whether it was reasonable for employee to be redeployed - consultation requirements not met - reasonable to redeploy in all of the circumstances - preliminary objection not upheld - merits of application to be heard.

INTRODUCTION AND CASE OUTLINE

[1] Mr James Suridge (Mr Suridge or the applicant) has made an application to Fair Work Australia claiming that his dismissal on 8 November 2011 by Boral Window Systems Pty Ltd T/A Dowell Windows (Dowell or the employer) was unfair.

[2] Dowell contends in part that the dismissal was a genuine redundancy within the meaning of s.389 of the Fair Work Act 2009 (the Act). That is, the dismissal was said to be for genuine operational reasons and occurred in the context of a decision to, in effect, outsource the maintenance functions of the employer’s window manufacturing operation at Elizabeth East. Further, it was said that the consultation requirements of the relevant industrial instrument had been met and that all reasonable redeployment options had been explored. As a result, the employer argues that the applicant’s dismissal cannot be an unfair dismissal within the meaning of s.385 of the Act.

[3] Mr Suridge contends that the dismissal was not a genuine redundancy on two principal grounds. Firstly, that Dowell did not meet the consultation obligations of the relevant industrial instrument. Secondly, that the employer did not redeploy the applicant when it was reasonable that it do so either within the immediate operations or within the broader Boral group.

[4] Section 396 of the Act requires that I deal with the employer’s jurisdictional objection before considering the merits of the application.

[5] As this matter involves contested facts, I was required by s.397 of the Act to either conduct a conference or a hearing. In accordance with s.398 of the Act, I determined that this preliminary matter would be subject to a hearing.

[6] Both parties were given permission to be legally represented. 1 Mr Ats appeared for the applicant and Mr Chadwick represented Dowell.

THE EVIDENCE BEFORE FAIR WORK AUSTRALIA

[7] Dowell led evidence from the following:

Mr Adam Peacock - General Manager of Dowell;

Ms Giovanna Romeo - Divisional Human Resources Manager for Boral Construction Related Businesses (including the employer);

Mr Mark Worthington - Operations Manager of Dowell; and

Mr Raj Bose - Recruitment Advisor for the Boral National Recruitment team based in South Australia.

[8] Mr Suridge gave evidence and also relied upon the testimony of Mr David Kirner, Branch Secretary of the Construction, Forestry, Mining and Energy Union, Forestry and Forest Products Division (the CFMEU). Mr Kirner assisted the applicant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] FWA 3126
Decision Date: 6 JULY 2012

CaseChat Overview and Summary

Suridge brought proceedings against Boral Window Systems Pty Ltd, trading as Dowell Windows, in the Fair Work Commission (FWC) challenging the termination of his employment. The primary dispute centred on whether the termination was due to genuine redundancy, specifically following the outsourcing of the maintenance function to a third party, and if his position was no longer required due to operational reasons. Additionally, Suridge argued that the consultation requirements under the Fair Work Act 2009 had not been met and that it was unreasonable to expect him to be redeployed elsewhere within the company.

The FWC was required to determine if the termination was a genuine redundancy, whether the operational reasons for the redundancy were valid, and if the consultation requirements had been properly fulfilled. Furthermore, the court had to assess whether it was reasonable to expect Suridge to be redeployed within the company. The employer argued that the maintenance function was outsourced due to operational reasons, and Suridge's role was no longer required. The employee contested that the consultation requirements were not met and that it was unreasonable to expect him to be redeployed.

The FWC found that the employer had failed to adequately consult with Suridge, which was a critical requirement under the Fair Work Act. Despite this, the court determined that it was reasonable for Suridge to be redeployed within the company in all the circumstances. The failure in consultation did not negate the fact that the redundancy was genuine, and the operational reasons for outsourcing were valid. Consequently, the preliminary objection was not upheld, and the merits of Suridge's application were to be heard.

The FWC ruled that while the consultation requirements were not met, the redundancy was genuine, and the employer's decision to terminate Suridge's employment was reasonable. The court decided that the merits of Suridge's application would proceed, leaving the final orders to be determined at the conclusion of the hearing on the merits.

Orders