Wayne Vorwerk v Richley Transport Pty Ltd
[2012] FWA 8588
•5 OCTOBER 2012
[2012] FWA 8588 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Wayne Vorwerk
v
Richley Transport Pty Ltd
(U2012/8072)
COMMISSIONER RYAN | MELBOURNE, 5 OCTOBER 2012 |
Termination of employment - genuine redundancy - .
[1] The following is an edited version of the decision I gave in transcript on 26 September 2012.
[2] This is an application by Wayne Vorwerk for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to Richley Transport Pty Ltd. I have an appearance on the telephone by Mr Vorwerk. There is no appearance from anyone from the employer. My chambers have had contact with the employer. They are aware of the proceedings. At 8.46 pm yesterday Mr Jeff Thomas from Richley Transport Pty Ltd sent an email to my chambers which reads as follows:
“As I have only just received this email, due to work commitments, I work shift work, I am unable to attend. I don't see the point went the company is being wound up with no assets and I am facing bankruptcy.”
[3] The issue of the employer's status was drawn to my attention in earlier correspondence from Mr Thomas. The Tribunal has made its own enquiries by going to the ASIC website to check the status of Richley Transport Pty Ltd. It is clear from the records on the ASIC website that Richley Transport Pty Ltd is still a registered company. It is listed as being under external administration, but the company documents which are available on the public website of ASIC show that the Westpac Banking Corporation has filed a notification that they have appointed a controller and entered into possession of a particular asset of Richley Transport Pty Ltd.
[4] Westpac Banking Corporation has not been appointed as administrators of the company. They have merely exercised a right to become a controller other than a receiver or receiver-manager of a particular asset and the asset which is described on the ASIC documents is a 1994 Massey Ferguson model 3665, which I presume is a vehicle of some description. On the basis of my examination of the ASIC records, it appears that Richley Transport Pty Ltd is not under either administration by a receiver or manager, nor is it in liquidation. The ASIC website, however, does identify that Richley Transport Pty Ltd has filed for voluntary deregistration, although that matter doesn't appear to have been progressed or processed yet.
[5] On that basis it appears to me that it's proper to deal with the application of Mr Vorwerk in relation to his application for unfair dismissal remedy. Whilst the employer has not filed any detailed defence in relation to the application, nor has the employer identified any jurisdictional objections to this matter, having had regard to the details of the application filed by Mr Vorwerk, it appears to me that there is a jurisdictional issue which I must address.
[6] Section 396 of the Fair Work Act reads as follows:
“FWA must decide the following matters in relation 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; and
(d) whether the dismissal was a case of genuine redundancy.
[7] It is clear to me that the application was made within the period required in subsection 394(2). It is also clear to me that the applicant was a person protected from unfair dismissal. There is no information before me which would enable me to decide whether or not the dismissal was consistent with the Small Business Fair Dismissal Code. However, the issue which I do need to consider is whether or not the dismissal was a case of genuine redundancy. Genuine redundancy is defined in section 389 of the Fair Work Act 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.”
[8] On the basis of considering those issues I need to now consider whether or not the dismissal of the applicant in this matter is within jurisdiction, i.e. is it a case that the dismissal was not a case of genuine redundancy. If the dismissal was a case of genuine redundancy, then I would be obliged to dismiss the application.
[9] I then asked Mr Vorwerk some questions to assist me in deciding this matter.
THE COMMISSIONER: I note from the application that you filed and the details that you put in support of your application that the termination of your employment occurred immediately after you were given directions by your employer to take the truck back to the supplier. Is that what happened?
MR VORWERK: Yes.
THE COMMISSIONER: And in relation to Richley Transport, how many trucks did they have?
MR VORWERK: One by that stage. Originally four.
THE COMMISSIONER: But at the time we're talking about, which is the date of your termination or around that time, they only had the one trucks?
MR VORWERK: Yes.
THE COMMISSIONER: And you were directed by your employer to return that truck to the supplier?
MR VORWERK: Yes.
THE COMMISSIONER: And once you did that, did the employer have any discussions with you about your status as an employee, or your continued employment?
MR VORWERK: He sent me a text – I sent him a text message saying I'm assuming I'm looking for another job, and it was yes.
THE COMMISSIONER: Okay. I take it from what you are saying that the reason for the termination was that he no longer needed you because he no longer had a truck.
MR VORWERK: Yes.
THE COMMISSIONER: And I take it that from what you're also saying and what you put in your submissions, that you had discussed with him the circumstances surrounding the return of the truck and your termination of employment?
MR VORWERK: Yes. We discussed that and when he'll pay for my wages, and all that sort of stuff. But he never come through with the wages.
[10] On the basis of your submissions in this matter, and even in the absence of hearing from the employer, it appears to me that the status of the Applicant is that he was genuinely made redundant. If the employer only had one truck and the Applicant is the truck driver, and if the truck is returned to the supplier, then it appears to me that it would follow from that that what happens is the Applicant’s dismissal was because Richley Transport Pty Ltd no longer required the Applicant’s job to be performed by anyone, and that was because of the change of the operational requirements of the employer's enterprise. In other words they no longer had a truck. If they no longer had a truck, they no longer needed a truck driver. And it wasn't a case of they didn't need the Applicant - they didn't need any truck driver.
[11] That would appear to meet the first element of section 389(1). On the basis of the information the Applicant gave both in the written material and in answers to me now, it appears that the employer has complied with an obligation in a modern award that applied to the employment to consult about the redundancy. The consultation may have been short and it may not have led to any significant outcome other than termination, but it does certainly appear that consultation of some sort took place.
[12] On that basis, Mr Vorwerk, I find that your dismissal was a case of genuine redundancy within the meaning of section 389 of the Fair Work Act. And on that basis, Mr Vorwerk, I am compelled to dismiss your application.
COMMISSIONER
Appearances:
W. Vorwerk on his own behalf
No appearance for the Respondent
Hearing details:
2012:
Melbourne
September 26
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