Fair Work Act 2009
s.394—Unfair dismissal

Bronislaw (Bron) Ryzak
v
Starlluf Cranes Pty Ltd
(U2021/12075)

Application for unfair dismissal remedy – whether dismissal was a case of genuine redundancy – consultation provision in modern award not complied with by Respondent – dismissal not a case of genuine redundancy – Applicant unfairly dismissed – reinstatement inappropriate – compensation ordered.

[1] On 21 December 2021, Mr Bronislaw (Bron) Ryzak (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Starlluf Cranes Pty Ltd (Respondent). The Applicant seeks financial compensation.

When can the Commission order a remedy for unfair dismissal?

[2] Section 390 of the FW Act provides that the Commission may order a remedy if:

(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and

(b) the Applicant has been unfairly dismissed.

[3] Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed.

When is a person protected from unfair dismissal?

[4] Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

When has a person been unfairly dismissed?

[5] Section 385 of the FW Act provides that a person has been unfairly dismissed if the Commission 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.

Background

[6] The uncontested factual background to the matter is as follows:

•  The Applicant commenced working for the Respondent as a casual employee on 16 December 2013 before converting to full-time employment with the Respondent on 13 January 2014.

•  In or around May 2021, the Applicant made a claim for workers’ compensation in relation to an ankle injury.

•  The Applicant’s employment came to an end on 3 December 2021.

•  Before his employment came to an end, the Applicant was paid $47 per hour in relation to his ordinary hours of work and worked some overtime from time to time.

[7] A number of facts are in contest between the parties, including the question of whether the Applicant was dismissed at the initiative of the Respondent. Notwithstanding this, uncontested correspondence has been filed by the parties and the following facts can be drawn from that correspondence.

The workers’ compensation claim

[8] The Applicant incurred an injury to his ankle resulting in the making of a workers’ compensation claim. The Respondent lodged the claim in May 2021 and advised the Applicant of this. On 21 May 2021, the Applicant provided the Respondent with a certificate of capacity. This correspondence suggests that the Applicant was able to work 6 hours per day, 5 days per week, on light, office-based duties.

[9] Noting that the Applicant was unable to drive for the next 30 days, Mr Raj Krishnagiri, Service Manager of the Respondent, sought to pick up the Applicant’s work car the following Monday and, on 24 May 2021, wrote to the Applicant via email indicating that the Respondent could provide the Applicant with office work, provided he could organise his own transport to work. On 25 May 2021, the Applicant wrote to Mr Krishnagiri, providing a revised certificate of capacity indicating he could drive for a short distance of 10km, that this would allow him to drive to the office for light duties and that he would report to work at 8am the following day.

[10] It appears that, following the making of the workers’ compensation claim, there was some delay in the Applicant receiving payments and the Applicant followed this up with Mr Scott Valentine, Director of the Respondent, in June 2021. Mr Valentine indicated that he had resolved the issue.

The change in working arrangements

[11] The Applicant commenced working restricted duties. However, on 20 September 2021, Mr Krishnagiri wrote to the Applicant stating:

“Hi Bron,

We don’t have much work at workshop for next 4 weeks, so please attend work as per below Scheduled days and take leave for the remaining days. We can reassess this on 15.10.2021.Thanks

Week starting from 20.09.2021: Full week leave

Week starting from 27.09.2021: Take leave on Monday and Tuesday and work Wednesday, Thursday and Friday

Week starting from 04.10.2021: Take leave on Monday and Tuesday and work Wednesday, Thursday and Friday

Week starting from 11.10.2021: Take leave on Monday and Tuesday and work Wednesday, Thursday and Friday”.

[12] On 20 September 2021, the Applicant responded to Mr Krishnagiri’s email as follows:

“Hi Raj,

Thank you for that.

However as of tomorrow, I am cleared for return to full unrestricted pre-injury duties as per my employment contract.

Surely, there must be abundance of field work if you needed to employ two new service technicians last week and still actively advertising for new personnel, I am ready to assist.

Tomorrow morning I need to submit timesheets and expenses in the workshop, looking forward to discussing this matter further.”

[13] It appears that the Applicant was placed on paid annual leave for the week commencing 20 September 2021.

The Applicant’s contentions regarding returning to work and being required to take paid leave

[14] These events appear to have given rise to some tension between the parties with the Applicant having a desire to return to pre-injury duties from 20 September 2021 and the Respondent suggesting it did not have enough work for him and seeking that he access his annual leave.

[15] This tension can be seen in the following chain of correspondence between September and October 2021:

•  On 28 September 2021, Mr Krishnagiri wrote to the Applicant via email stating:

“Hi Bron,

Since we do not have work at workshop, please take leave for rest of the days this week. Thanks”

•  On 28 September 2021, the Applicant replied to Mr Krishnagiri via email stating:

“Hi Raj,

Thank you for your email.

I renew my plea for reinstatement of pre injury duties. since there is no work in the workshop please assign me for field duties.”

•  On 1 October 2021, Mr Krishnagiri wrote to the Applicant via email stating:

“Hi Bron,

Since we do not have work at workshop, please take leave till 15th of October 2021. We will review this situation again on 15/10/2021.”

•  On 4 October 2021, the Applicant wrote to Mr Krishnagiri via email stating:

“Hello Raj,

Thank you for your email, let’s do so.

Could you please instruct Phillis [sic], not to use my annual leave for this or any other period without my written application.

If you wish for me to take annual leave I would appreciate written notification with adequate notice as per my employment contract.

I would appreciate reinstatement of my annual leave hours from last week.”

•  On 6 October 2021, Ms Phyllis Lu, Accountant for the Respondent, wrote to the Applicant via email stating:

“Hi Bron,

Thanks for your email.

Unfortunately, we can’t reinstate your annual leave for the week ending 26/09/2021 because we have already processed payment.

Also we have already provided your payslip to worker cover company to pay the balance of work compensation. Worker cover payment will be processed to you this week.

For the next few week, could you please confirm if you would like to take leave without pay if you don’t want to use any annual leave?

Should you have any questions, please do not hesitate to contact me.”

[16] Noting that the Applicant had stated that if the Respondent wished for him to take annual leave, he would appreciate notification as per his employment contract, on 6 October 2021, a further email from Mr Krishnagiri to the Applicant stated:

“Hi Bron,

Also I am not sure which Of your Employment contract your referring to in the attached mail, please send us the whole copy of contact you are referring to so that we can act accordingly.”

[17] It is apparent that the Applicant’s frustration with the Respondent’s response was building at this point and, on 7 October 2021, the Applicant wrote to Mr Krishnagiri via email stating:

“Hello Raj,

Remedying erroneous annual leave payment should be easy: manually change the hours. I have an outstanding workers compensation payment for Monday the 20th of September ( last one, not affected by any timesheets) as well as so far unpaid reimbursement for fuel submitted Tuesday the 21st of September. Please hold on to those amounts and remainder deduct in $100 intervals from my future wages.

As far as the contract is concerned – it is the same you have on file. I have no capacity to scan it at this stage.

For the record: I have been granted NSW government pandemic relief subsidy till the 15th of October, so I can “take one for the team” so to speak during these difficult times. I do not wish to use my annual leave, I would like to return to work as soon as possible.”

The new employment contract

[18] The Respondent then sought to issue the Applicant with a new employment contract and, on 7 October 2021, an email from Mr Krishnagiri to the Applicant stated:

“Hi Bron,

I have found previous contract you signed with Cranetec in 2016 and noted that the positioned [sic] mentioned in the contract Key Account manager is no longer exist. So please find new contract to suit your ongoing employment with Starlluf cranes.”

[19] A copy of the new employment contract, dated 7 October 2021, was filed with the Applicant’s materials and, by way of summary:

•  states that the Applicant’s position is “Crane Technician – Mechanical”;

•  includes an effective start date of 18 October 2021;

•  states that the Applicant will be based at the Respondent’s workshop and his roles will include but are not limited to:

•  assembly of new cranes and other materials handling equipment at Cranetec workshop in a professional and tradesman like manner;

•  ensure that work is performed, within agreed times and to an acceptable standard ensuring all work complies with current Australian and State standards;

•  to comply with Cranetec Safety Standards as a minimum;

•  to work within Cranetec QA procedures and complete required documentation;

•  be accountable for material, tools and equipment supplied and provided by Cranetec;

•  complete paperwork accurately and fully which will also be an area where this contract will be reviewed against;

•  states that the Applicant will be paid a normal time rate of $40 per hour, overtime rate of $60 per hour and double time rate of $80 per hour; and

•  states that ordinary hours will be 8.00am to 4.30pm, including a 0.5 hour lunch break.

[20] The rates of pay in the new employment contract were below the rates of pay paid to the Applicant in his pre-injury role.

Escalating tensions

[21] On 7 October 2021, Mr Valentine, who was copied in on the earlier email exchanges between the Applicant and Mr Krishnagiri, wrote to the Applicant via email stating:

“Hi Bron,

Any amount s from work comp will be paid, there is no fuel payment outstanding to be paid, all service fuel expenses where [sic] paid before and during when you were on works comp.

We will leave the holidays that have been paid the way it is.

As per your email we will not pay any holidays for the remaining period you are off.”

[22] Clearly dissatisfied with Mr Valentine’s response and the Respondent’s attempt to have him enter into a new employment contract, on 7 October 2021, the Applicant replied as follows:

“Hi Scott,

I don’t find your decision reasonable.

I cannot accept the new employment contract. I am happy with the existing contract and I believe I have fulfilled my obligations placed upon me.

I will remain on leave with no pay till the nominated date of schedule review (15/09/2021) and anticipated return to my preinjury duties on 18/09/2021.

I am also seeking advice in this matter.”

The redundancy discussion

[23] On 18 October 2021, the Applicant had a meeting with Mr Valentine. After that meeting, the Applicant emailed Mr Valentine as follows:

“Hello Scott,

Thank you for taking the time and speaking with me.

I would like to summarise the meeting from this morning.

You made it clear that my position is no longer available and I am being made redundant.

You gave me verbal notice of termination with applicable notice period.

You chose to provide payment in lieu of notice period.

You stated that all of my applicable entitlements will be realised.

I took the liberty of attaching Redundancy fact sheet from Fair Work Ombudsman.

As per attached sheet:

Applicable minimum notice period: more than 5 years of continued service – 4 weeks’ notice. Additionally employees over 45 years of age are entitled to one more week of notice.

Applicable minimum redundancy payment requirements: at least 7 years, less than 8 years of continued service – 13 weeks pay. Employment start date 13 January 2014.

Please remember to add pro-rata long service leave, accrued annual leave and RDO’s.

Please prepare written employment termination notice stating the redundancy reason. I will pick it up at your earlies [sic] convenience.

I will return Cranetec uniforms and Safety harness that are still in may [sic] possession, later on today.”

[24] On 25 October 2021, the Applicant sent a follow up email to Mr Valentine as follows:

“Hello Scott,

To date I have not received reply to the email attached. Nor have I received Termination letter and payment of entitlements.

Since my employment contract has not been terminated I have submitted time sheets for last week to Phillis [sic].

It appears that prolonged delays on your behalf are meant to force me in to some kind of unfavourable decision, perhaps resignation.

It became clear to me that you have made the decision to terminate my employment in late July 2021: demanding return of company vehicle and I-Pad as well as cancelling my Cranetec work email address. Subsequent work roster changes and cancelations due to lack of work were fictional and were intended to induce stress. There was no work – but just for me.

Therefore I request reestablishment of my annual leave status incorrectly used by Cranetec for for [sic] period: 21-24 September 2021.

I also request back payment of wages for the period: 21-24/9, 27/9-1/10, 4-8/10 and 11-15/10.

I have been cleared for preinjury duties with Certificate provided but I have been effectively stood down by Cranetec.”

[25] It is apparent that, at that the meeting on 18 October 2021, the termination of the Applicant’s employment was discussed because, on 26 October 2021, Mr Krishnagiri emailed the Applicant stating:

“Hi Bron,

We have reviewed your below query and now management has decided to ask you to work for next 5 weeks to cover the notice period from next Monday the 1st of November 2021. Please call us if you have any queries.”

Written notification of redundancy and termination

[26] On 1 November 2021, Mr Valentine wrote to the Applicant notifying him in writing that he was to be terminated by reason of redundancy, with the termination letter stating:

“Dear Bron,

Sub: Termination of Employment by Redundancy

This letter is to advise you about the outcome of recent review into Cranetec Current situation. As a result of this review Cranetec must make some changes which are going to affect your current position with the company. Alternatively, by considering your ongoing employment company has offered you workshop based role through new contract which you decline to accept.

Unfortunately the consequence of above the company has no choice other than terminate your employment by redundancy. Your last day of employment with Cranetec is 4^th of December 2021.

Our accounts department will sort out your redundance [sic] package as per current laws including leave and other entitlements you may be eligible.

May I take this opportunity thank you for your service to the company and wish you all the best for the future.

Your final settlement will be done along with our last week pay.

We request that you please return all company tools and equipment before the last working day

Please keep in mind that you have signed a non-disclosure agreement as part of your employment contract.”

The continuation of the pay dispute

[27] It is apparent that, following the notification of his termination by reason of redundancy, the Applicant continued to raise concerns about his pay and the recording of time as paid annual leave against his wishes.

[28] On 4 November 2021, after receiving his pay slip, the Applicant wrote to Ms Lu via email stating:

“Hi Phillis [sic],

Thank you for the pay slip.

It’s incorrect, I did not state on the time sheet “holiday” I stated “Lost time.

Please rectify the issue.

Also please fix the sick leave balance, it acrues [sic] 1.4 hrs but balance increases in negative.”

[29] On 4 November 2021, Ms Lu wrote to the Applicant via email stating:

“Hi Bron,

Thanks for your email.

As per Scott’s instruction, we paid you holiday hours to cover “lost time”. I will confirm with Scott again tomorrow.

In term [sic] of sick leave balance, it shows negative because we paid you 30 sick leave hours on week ending 23/05/2021. Please see attached payslip.

As work compensation only cover 1 day on that week (work cover payment start from 21/05/2021), we paid you 30 sick leave hours to make up 38 hours for that week.

Unfortunately, you might not have enough sick leave accrued afterwards, so it still shows negative figure.

Hopefully, it makes sense to you.

Should you have any questions, please do not hesitate to contact me.”

[30] The Applicant replied to Ms Lu’s email asking that she raise the issue with Mr Valentine.

[31] On 5 November 2021, Mr Valentine wrote to the Applicant via email stating:

“Hi Bron,

I am getting a little confused by what you are saying.

I believe the best way forward is for you to contact fair work and go though [sic] it with them in your own time and they can explain it to you or we can discuss it with them afterwards.

Apart from that, if you are upset please take today off and or please come today with a wiliness [sic] to work knowing what ever I correct it will be sorted.”

The retraction of the redundancy and termination

[32] After this, there is a peculiar turn of events in that the Respondent appears to attempt to retract its decision to terminate the Applicant’s employment on the grounds of redundancy. In particular, on 15 November 2021, Mr Krishnagiri wrote to the Applicant via email stating:

“Hi Born [sic],

Please find attached letters in regards to changes to your ongoing employment with Cranetec.”

[33] A letter dated 15 November 2021 to the Applicant from Mr Valentine states:

“Dear Bron,

Sub: Review of your employment with Crantec

With reference to Cranetec letter dated 01/11/2021 regarding Termination of your employment through redundancy, I hereby advise you that the management has decided to withdraw the termination letter due to following reason.

Cranetec has reviewed its position and decided to retain you with the company by offering new employment contract as workshop Technician due and [sic] to increase in workload. The proposed new contract will have the same hourly rate as your present hourly rate of wages…”

[34] A copy of a new employment contract, dated 15 November 2021, was filed with the Applicant’s materials and, by way of summary:

•  states that the Applicant’s position is “Crane Technician – Mechanical”;

•  includes an effective start date of 15 November 2021;

•  states that the Applicant will be based at the Respondent’s workshop and his roles will include but are not limited to:

•  assembly of new cranes and other materials handling equipment at Cranetec workshop in a professional and tradesman like manner;

•  ensure that work is performed, within agreed times and to an acceptable standard ensuring all work complies with current Australian and State standards;

•  to comply with Cranetec Safety Standards as a minimum;

•  to work within Cranetec QA procedures and complete required documentation;

•  be accountable for material, tools and equipment supplied and provided by Cranetec;

•  complete paperwork accurately and fully which will also be an area where this contract will be reviewed against;

•  states that the Applicant will be paid a normal time rate of $47 per hour, overtime rate of $70.50 per hour and double time rate of $94 per hour; and

•  states that ordinary hours will be 8.00am to 4.30pm, including a 0.5 hour lunch break.

[35] On 22 November 2021, Mr Krishnagiri wrote to the Applicant via email stating:

“Hi Bron,

With reference to attached contract we have not yet received your response, but today when you had conversation with Scott you did confirmed [sic] that you have received the contract.

So could you please respond to my mail as soon as possible, but If we do not receive your response by COB 29.11.2021 we will assume that you have accepted our offer.”

The end of the Applicant’s employment

[36] On 2 December 2021, the Applicant wrote to Mr Krishnagiri via email stating:

“Hi Raj,

Following Scott’s advice I have obtained guidance on the matter, so here it goes:

1. Your redeployment offer is not suitable, viable or equivalent, and has not been accepted.

2. Your termination withdrawal is irrelevant as your redeployment off offer has not been accepted.

3. I will finish off on Friday the 3rd of December as per the termination letter.”

[37] On 2 December 2021, Mr Krishnagiri replied to the Applicant via email as follows:

“Hi Bron,

Thanks for your response. But with reference to Company review letter dated 15.11.2021, the management has taken decision to withdraw your termination letter due to increase in workload after businesses reopen due covid19 lockdown.

I hereby make the company position clear that, since the management has withdrawn termination of your employment through redundancy on 15.11.2021 by offering new contract, the redundancy offer is no longer valid and was only on offer due to the down turn due to covid.

Our offer includes the same pay rate and as a technician , we would like you to stay but the decision is yours to make.”

[38] Following a meeting on 3 December 2021, Mr Valentine sent an email to the Applicant as follows:

“Hi Bron,

Thankyou for you time this morning,

As discussed in the meeting we are offering you employment in out [sic] outside the factory as a technician.

We sent you the contract on 15/11/2021 with no replay [sic] we then sent a second email on the 22nd of November in that we stated if we have not heard from you we take it that you accept the contract, we have now received a email on the 2 December saying you will be finished on the third of December.

We had a meeting with you this morning on the 3rd of December , stating we were happy to negotiate your contract and said you should have brought it to our attention before if there was anything you were not happy with, we clearly stated we where [sic] open to negation [sic] to get an outcome for all parties we it [sic] taken as there not been any reply you had accepted the contract.

It is disappointing you were unwilling to negotiate or discuss any possibility of continued employment with the company and you said you only wanted a third party to get involved that you are finishing up today and could not persuaded to stay in the technician role.

We will take this as a resignation, effective from today as you have stated you will be finishing today.”

[39] The Applicant submits that he has been unfairly dismissed by the Respondent.

[40] The Respondent submits that the Applicant was not unfairly dismissed as it was his decision to leave his employment on 3 December 2021.

The conference

[41] There being contested facts involved, the Commission is obliged by s.397 of the FW Act to conduct a conference or hold a hearing.

[42] After taking into account the views of the parties and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a conference for the matter (s.399 of the FW Act). Accordingly, a conference was held on 19 April 2022.

[43] The Applicant and Respondent were self-represented at the conference.

Witnesses

[44] At the conference, the Applicant gave evidence on his own behalf and Mr Krishnagiri gave evidence on behalf of the Respondent.

Submissions

[45] The Applicant filed submissions in the Commission on 14 March 2022. The Respondent filed submissions in the Commission on 31 March 2022. Submissions in reply were filed by the Applicant on 1 April 2022.

Has the Applicant been dismissed?

[46] A threshold issue to determine is whether the Applicant has been dismissed from his employment.

[47] Section 386(1) of the FW Act provides that the Applicant has been dismissed if:

(a) the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or

(b) the Applicant has resigned from his employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.

[48] Section 386(2) of the FW Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.

[49] The Applicant submits that he was dismissed for the following reasons: 1

•  on 15 July 2021, his company email was cancelled and his contractually provided company vehicle was withdrawn;

•  on 7 October 2021, he was advised by the Respondent’s Service Manager by email that his position of “Key Account Manager”, as per his 2016 employment contract, no longer exists. The Applicant was then presented with a redeployment offer with significantly reduced pay and unsuitable duties;

•  on 18 October 2021, during a meeting with management, he was told that he was “being let go” and it was agreed that he was to be made redundant and paid five weeks pay in lieu of notice;

•  on 26 October 2021, the Respondent’s Service Manager informed him via email that the Respondent had changed its position and that he was required to work through his 5 week notice period in the workshop from 1 November 2021;

•  on 1 November 2021, he received a “Termination Letter based on Redundancy”, providing five weeks’ notice to be spent working in the workshop;

•  on 15 November 2021, he received a letter retracting the termination letter. The Applicant submitted he was advised that his position was no longer redundant however he was unable to resume it. The Applicant submitted that a new offer of redeployment was made with slightly better pay however he considered the duties were unsuitable and declined the offer; and

•  on 3 December 2021, he had a meeting with management on the last day of his notice period during which another verbal offer of redeployment was presented. The Applicant submitted that the offer was compatible with his previous contract but the duties were unsuitable and he declined the offer.

[50] The Applicant submitted that the offer of alternative employment involved a significant reduction in duties, because he would have been required to change from being a Senior Service Technician to a workshop labourer, and there was no provision for a company car amounting to $20,000-$30,000 in value. 2

[51] The Applicant also submitted that he believed the Respondent made a decision to terminate his employment in July 2021 during his return to work program following a workplace injury. 3

[52] The Respondent submitted that it did not dismiss the Applicant because he resigned. 4 In particular, the Respondent submitted that:

•  it was notified of the Applicant’s resignation on 2 December 2021 via email that stated the Applicant would not accept the employment contract offered to him dated 15 November 2021 and that he would finish off working with the Respondent on 3 December 2021; 5

•  the contract offered to the Applicant set out the same hourly rate of $47 per hour, which he was being paid for the last few years; 6

•  it believes the Applicant is keen to take a redundancy package rather than continuing to work with the Respondent; 7 and

•  a meeting was organised with the Applicant and Mr Valentine on the morning of 3 December 2021 and Mr Valentine tried to convince the Applicant to continue to work with the Respondent, indicating that, if there was something the Applicant would like to negotiate, he was open to discussing it. The Respondent submitted the Applicant could not be persuaded, wanted a third party to get involved and finished working with the Respondent on the same date. 8

[53] During cross-examination, the Applicant confirmed that:

•  the contract offered to him by the Respondent on 15 November 2021 had the same hourly rate that the Applicant was on during his pre-injury duties;

•  on 2 December 2021, he rejected the new contract offered to him and indicated he would be finishing up the following day, being 3 December 2021; and

•  during the meeting on 3 December 2021, the Respondent had negotiations with him in an endeavour to get him to stay and offered him a company vehicle but he declined the offer.

[54] During cross-examination, the Applicant also agreed with the statement put to him that, after the meeting on 3 December 2021, the Respondent “was making all efforts to keep him with the company”.

[55] During the conference, I sought to understand the nature of the Applicant’s role before his employment came to an end. The Applicant gave evidence that:

•  he was employed as a “Senior Service Technician”;

•  his duties involved:

•  “service;

•  repairs;

•  maintenance;

•  overhead travelling cranes and lifting equipment in field;

•  occasional installation of the new equipment and modernisation;

•  specialised work such as operator training;

•  assessments for continued safe use;

•  occasional administrative duties;

•  coordination of work crews;

•  safety related paperwork, such as job safety analysis and work method statements;

•  quotations and so on”;

•  the depot where he was based was 55 Market St, Smithfield, but the majority of work was done in the field; and

•  he was paid $47 per hour on the basis of 40 hours worked and 38 hours paid, totalling $1,786.00 gross per week.

[56] During the conference, I sought to understand the Applicant’s view about the nature of the role offered to him on 15 November 2021 when the Respondent retracted the redundancy. The Applicant’s evidence was that the role offered to him:

•  was also full-time;

•  was the role of “workshop assembly technician”;

•  as a “workshop assembly technician”, he was required to be a “labourer, sweeper and a forklift driver”;

•  was based in the workshop at 55 Market St, Smithfield; and

•  on 7 October 2021, he was offered $40 per hour in respect of this role with no entitlements to a mobile phone, email address or company vehicle. However, on 15 November 2021, when he received notice of the retraction of the redundancy, the offer was updated to $47 per hour, however there were still no entitlements to a mobile phone, email address or company vehicle.

[57] During the conference, I sought to understand why the Applicant did not accept the alternative offer of employment. The Applicant’s evidence was that:

•  “the offer was inadequate considering [his] previous duties” and “would have been a waste of [his] abilities”; and

•  if the redundancy had been retracted, he would assume his position was being restored or was available for him to resume.

[58] The Applicant’s evidence was that he was a qualified electrical fitter/mechanic with post trade qualifications including a Certificate IV in Workplace Training and Assessment, he had been conducting engineering assessments on overhead cranes and overhead crane operator training and that the role offered would result in a drastic reduction in duties.

[59] The Respondent was given another opportunity to cross-examine the Applicant about his responses. The Respondent asked him whether, before he “left the company … was he sent to site to do any work?” The Applicant’s evidence was that, before he was dismissed, he “did get sent to site to modify newly installed crane in Gosford NSW on his second last day”. The Respondent put to the Applicant that it was discussed with him in the meeting (on 3 December 2021) that his role would be a “combination of on-site and factory work” and the Applicant agreed with this.

[60] Mr Krishnagiri gave evidence that:

•  on 1 November 2021, a redundancy was offered to the Applicant due to lack of work as a result of COVID-19 as most customers were closed at that time;

•  on 15 November 2021, after the government announced an easing of restrictions, a management meeting was held, the Respondent retracted the redundancy due to an increase in work due to businesses opening up and a new employment contract was offered to the Applicant;

•  after that employment contract offered to the Applicant was rejected, a second employment contract was offered to the Applicant including the same hourly rate as what he was paid prior to his injury;

•  on 22 November 2021, he sent a follow up email to the Applicant and, on 2 December 2021, the Applicant sent an email rejecting the offer; and

•  on 3 December 2021, the Applicant rejected all offers to stay on.

[61] I find that, on 1 November 2021, the Respondent provided the Applicant with notice of the termination of his employment by reason of redundancy, with the termination letter stating:

“Dear Bron,

Sub: Termination of Employment by Redundancy

This letter is to advise you about the outcome of recent review into Cranetec Current situation. As a result of this review Cranetec must make some changes which are going to affect your current position with the company. Alternatively, by considering your ongoing employment company has offered you workshop based role through new contract which you decline to accept.

Unfortunately the consequence of above the company has no choice other than terminate your employment by redundancy. Your last day of employment with Cranetec is 4^th of December 2021.

Our accounts department will sort out your redundance [sic] package as per current laws including leave and other entitlements you may be eligible.

May I take this opportunity thank you for your service to the company and wish you all the best for the future.

Your final settlement will be done along with our last week pay.

We request that you please return all company tools and equipment before the last working day

Please keep in mind that you have signed a non-disclosure agreement as part of your employment contract.”

[62] The letter of 1 November 2021 makes clear that the Applicant’s last day of employment would be 4 December 2021.

[63] While the Respondent appears to have had a change of mind and sought to retract the notice of termination, it was unable to do so without the consent of the Applicant and the evidence establishes that such consent was not provided. The decision in Birrell v Australian National Airlines Commission 9 supports this proposition, with Gray J finding, after considering the relevant authorities:

“These authorities all support the view that unilateral withdrawal of a notice of termination of a contract of employment is not possible. In principle, this conclusion must be correct.”

[64] It is also apparent from the evidence that the Respondent was seeking to withdraw the termination such that the Applicant was to continue in his pre-injury role, but was attempting to negotiate a new offer of employment with him, such offers not being agreed to by the Applicant.

[65] I am satisfied that the Applicant has been dismissed by the Respondent within the meaning of s.386 of the FW Act.

Initial matters

[66] Under s.396 of the FW Act, the Commission is obliged to decide the following matters 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;

(d) whether the dismissal was a case of genuine redundancy.

Was the application made within the period required?

[67] Section 394(2) of the FW Act requires an application to be made within 21 days after the dismissal took effect. While the letter of termination dated 1 November 2021 indicates that the Applicant’s last day of employment would be 4 December 2021, this was a Saturday. As such, it was likely to have been intended that the Applicant’s last day of employment was to be 3 December 2021. Notwithstanding this, it is not disputed that the Applicant’s employment came to an end on 3 December 2021. I find that the Applicant was dismissed from his employment on 3 December 2021 and made the application on 21 December 2021. I am therefore satisfied that the application was made within the period required in s.394(2) of the FW Act.

Was the Applicant protected from unfair dismissal at the time of dismissal?

[68] I have set out above when a person is protected from unfair dismissal.

Minimum employment period

[69] It was not in dispute and I find that the Respondent is not a small business employer, having 15 or more employees at the relevant time. 10

[70] It was not in dispute and I find that the Applicant was an employee, who commenced his employment with the Respondent on 16 December 2013 before converting to full-time employment with the Respondent on 13 January 2014, and was dismissed on 3 December 2021, a period in excess of 6 months.

[71] I am therefore satisfied that, at the time of dismissal, the Applicant was an employee who had completed a period of employment with the Respondent of at least the minimum employment period.

Modern award coverage and Applicant’s annual rate of earnings

[72] It was not in dispute and I find that, at the time of dismissal, the Applicant was covered by an award, being the Electrical, Electronic and Communications Contracting Award 2020 (Award).

[73] Further, it was not in dispute and I find that, at the time of dismissal, the sum of the Applicant’s annual rate of earnings, together with such other amounts worked out in accordance with regulation 3.05 of the Fair Work Regulations 2009, was less than the high income threshold, which, for a dismissal taking effect on or after 1 July 2021, is $158,500.00.

[74] I am therefore satisfied that, at the time of dismissal, the Applicant was a person protected from unfair dismissal.

Was the dismissal consistent with the Small Business Fair Dismissal Code?

[75] Section 388 of the FW Act provides that a person’s dismissal was consistent with the Small Business Fair Dismissal Code if:

(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and

(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.

[76] As mentioned above, I find that the Respondent was not a small business employer within the meaning of s.23 of the FW Act at the relevant time, having in excess of 14 employees (including casual employees employed on a regular and systematic basis).

[77] I am therefore satisfied that the Small Business Fair Dismissal Code does not apply, as the Respondent is not a small business employer within the meaning of the FW Act.

Was the dismissal a case of genuine redundancy?

[78] Under s.389 of the FW Act, a person’s dismissal was a case of genuine redundancy if:

(a) the 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.

[79] In its initial response to the application, the Respondent did not raise an objection to the effect that the dismissal was a case of genuine redundancy, however it did so at the time of filing its submissions. The Respondent did not file submissions addressing this objection.

[80] Notwithstanding this, in the interests of a fair go all round and noting that both parties in this matter were self-represented, I have considered the facts and evidence surrounding the dismissal and whether those facts and evidence establish that the dismissal was on the grounds of genuine redundancy.

[81] As noted above, the Applicant submitted that he believed the Respondent made a decision to terminate his employment in July 2021 during his return to work program following a workplace injury. 11

[82] Having considered the events leading up to the Applicant being provided with notice of the termination of his employment in the letter dated 1 November 2021, it is apparent to me that the relationship between the Applicant and Respondent became a strained one after the Applicant began to express frustration regarding the management of his workers’ compensation claim, return to work and pay. It is understandable that the Applicant became frustrated as, having been cleared to return to pre-injury duties, he was prevented from doing so and forced to take annual leave. As the Applicant sought to have this issue resolved, the Respondent also took actions that could be expected to cause further frustration, including issuing him with another employment contract in October 2021, which was inferior in terms of pay, and refusing to address his concerns about being required to take his paid annual leave when he wanted to return to work.

[83] The Applicant says he was cleared for pre-injury duties from 20 September 2021. The email from Mr Krishnagiri to the Applicant on 20 September 2021 suggests that the Respondent was not able to bring the Applicant back to work on pre-injury arrangements because it didn’t have enough work for him at the workshop. However, I accept the Applicant’s evidence, which was not contested by the Respondent, that a significant part of his pre-injury duties involved field work and, on 20 September 2021, in an email response to Mr Krishnagiri, the Applicant stated:

“Surely, there must be abundance of field work if you needed to employ two new service technicians last week and still actively advertising for new personnel, I am ready to assist.”

[84] Notwithstanding this, in his emails of 28 September 2021 and 1 October 2021, Mr Krishnagiri maintained that the Respondent did not have enough work for the Applicant at the workshop.

[85] Following these events, it is apparent that, at the meeting on 18 October 2021, the termination of the Applicant’s employment was discussed. Based on the evidence before me, I have formed the belief that the Applicant was told at this meeting that the reason for his dismissal was that he was being made redundant because there was no work available for him. Further, on 1 November 2021, Mr Valentine wrote to the Applicant formally notifying him that he was to be terminated by reason of redundancy, with the termination letter stating:

“Dear Bron,

Sub: Termination of Employment by Redundancy

This letter is to advise you about the outcome of recent review into Cranetec Current situation. As a result of this review Cranetec must make some changes which are going to affect your current position with the company. Alternatively, by considering your ongoing employment company has offered you workshop based role through new contract which you decline to accept.

Unfortunately the consequence of above the company has no choice other than terminate your employment by redundancy…”

[86] A question that arises is whether this was the real reason that the Applicant was terminated.

[87] The management of the Applicant’s return to work was poor and, given the tensions that arose in relation to this, it is understandable that the Applicant may have had his suspicions about the Respondent’s motivations in seeking to make him redundant and whether this was related to his workers’ compensation claim.

[88] Mr Krishnagiri’s evidence during the conference was also confusing. On the one hand, he asserted that the Applicant’s role of “Service Technician” remained available to him and, on the other hand, inferred that the Applicant remained unfit for pre-injury duties and that he had communicated to the insurer’s return to work coordinator that the Respondent could provide some light duties such as “clean up and fix up the store” and “they were ok with that”. Mr Krishnagiri continued, “I don’t know whether they communicated that to Bron Ryzak, I’m not sure about it”. When Mr Krishnagiri insisted that the role offered to the Applicant remained a “Service Technician” role, implying there was no change to it, I asked him why he needed to go through a process of offering the Applicant something else. In other words, if there was no change, why was the Applicant unable to go back to work as normal. Mr Krishnagiri suggested this was because he still had “limitations” and clarified that the Applicant “came back as a technician on light duties, he returned on light duties” and said this meant that “as a technician we can’t send him to the sites as the job involved climbing the ladders and going into the underground pits…and because of his ankle issues and the distance he has to drive to go to the sites…maybe he has to drive for 50km sometimes a bit more…it was not within 10km”. During the conference, Mr Krishnagiri did not appear to accept that the Applicant was willing and able to resume his pre-injury duties at any stage and I found it difficult to elicit a clear answer from Mr Krishnagiri regarding whether the Applicant was able to return to his pre-injury duties.

[89] Having considered the evidence, I accept the Applicant’s description of his pre-injury role, as given during his evidence at the conference, and it is apparent that the alternative role offered to him was workshop based and different to his pre-injury role. It is also clear that the Respondent communicated to the Applicant that he was to be terminated on the grounds of redundancy.

[90] However, at the same time, the Applicant’s return to work did coincide with the COVID-19 pandemic and I accept the evidence of Mr Krishnagiri that many of the Respondent’s clients were closed at this time, which would have impacted the work available. In these circumstances, the Respondent should have had discussions with the Applicant about the impact of this on his employment earlier rather than requiring him to take leave against his wishes when he was ready, willing and able to return to his pre-injury duties. In my view, this poor communication resulted in unnecessary angst for the Applicant who wanted to return to the workplace and work as he had before his injury.

[91] It is apparent that, at the meeting on 18 October 2021, the termination of the Applicant’s employment was discussed. Based on the evidence before me, I find that the Applicant was told at this meeting that the reason for his dismissal was that he was being made redundant because there was no work available for him. Further, on 1 November 2021, Mr Valentine wrote to the Applicant notifying him in writing that he was to be terminated by reason of redundancy.

[92] While the Applicant’s return to work should have, in my view, been better handled through clearer and more transparent communication, based on the evidence before me, I am satisfied that the reason why the Applicant was not permitted to return to work was because the Respondent did not have enough work for him to continue to perform his pre-injury role due to the impacts of the COVID-19 pandemic. I am also satisfied that, by 18 October 2021, the Respondent came to the realisation that this meant the Applicant’s role was no longer needed within the business at that time and communicated this to him verbally.

[93] While the Respondent may have later had a change of heart when the environment in relation to COVID-19 changed, at the time of notifying the Applicant of his dismissal, I am satisfied that the reason for dismissal was redundancy due to the Respondent no longer needing the Applicant’s role to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise.

[94] However, the question arises as to whether the dismissal was a case of “genuine redundancy” and, in order for this to be so, the Respondent needs to have complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

[95] As noted, it was not in dispute and I find that, at the time of dismissal, the Applicant was covered by the Award. Clause 27 of the Award provides as follows:

“27. Consultation about major workplace change

27.1  If an employer makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must:

(a) give notice of the changes to all employees who may be affected by them and their representatives (if any); and

(b) discuss with affected employees and their representatives (if any):

(i) the introduction of the changes; and

(ii) their likely effect on employees; and

(iii) measures to avoid or reduce the adverse effects of the changes on employees; and

(c) commence discussions as soon as practicable after a definite decision has been made.

27.2  For the purposes of the discussion under clause 27.1(b), the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including:

(a) their nature; and

(b) their expected effect on employees; and

(c) any other matters likely to affect employees.

27.3  Clause 27.2 does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer’s interests.

27.4  The employer must promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussion under clause 27.1(b).

27.5 In clause 27 significant effects, on employees, includes any of the following:

(a) termination of employment; or

(b) major changes in the composition, operation or size of the employer’s workforce or in the skills required; or

(c) loss of, or reduction in, job or promotion opportunities; or

(d) loss of, or reduction in, job tenure; or

(e) alteration of hours of work; or

(f) the need for employees to be retrained or transferred to other work or locations; or

(g) job restructuring.

27.6  Where this award makes provision for alteration of any of the matters defined at clause 27.5, such alteration is taken not to have significant effect.”

[96] I am satisfied that, as at 18 October 2021, the Respondent had made a definite decision to make a major change in structure, being the removal of the Applicant’s role from that structure, that this was likely to have significant effects on the Applicant and that the consultation requirements in the Award were enlivened.

[97] There is no evidence of consultation about the major change prior to the meeting of 18 October 2021. However, I am satisfied that, at the meeting on 18 October 2021, a discussion was had with the Applicant about the redundancy.

[98] The Applicant gave the following evidence about the discussion during the meeting on 18 October 2021:

“Instead of being given work on October 18th I was told in the brief meeting with management that I am being let go, not sacked, to which I replied: there are no grounds for sacking.

The reply was: you had an axe to grind for some time.

I asked you mean I am a thorn in your side – the reply was: you know what I mean.

I summarized [sic] the meeting: I am being made redundant, with 5 weeks’ notice and asked: do you want me to work the five weeks?

The reply was: no, you would be disruptive influence in the workshop.

I have returned home to pack company uniforms to return to office.

I have summarized [sic] the meeting in the email form and sent to management.” 12

[99] The email the Applicant referred to summarising the meeting was filed with the Applicant’s materials, is dated 18 October 2022, and states:

“Hello Scott,

Thank you for taking the time and speaking with me.

I would like to summarise the meeting from this morning.

You made it clear that my position is no longer available and I am being made redundant.

You gave me verbal notice of termination with applicable notice period.

You chose to provide payment in lieu of notice period.

You stated that all of my applicable entitlements will be realised.

I took the liberty of attaching Redundancy fact sheet from Fair Work Ombudsman.

As per attached sheet:

Applicable minimum notice period: more than 5 years of continued service – 4 weeks’ notice. Additionally employees over 45 years of age are entitled to one more week of notice.

Applicable minimum redundancy payment requirements: at least 7 years, less than 8 years of continued service – 13 weeks pay. Employment start date 13 January 2014.

Please remember to add pro-rata long service leave, accrued annual leave and RDO’s.

Please prepare written employment termination notice stating the redundancy reason. I will pick it up at your earlies [sic] convenience.

I will return Cranetec uniforms and Safety harness that are still in may [sic] possession, later on today.”

[100] Mr Krishnagiri gave evidence during the conference that:

•  some time in October 2021, he had a meeting with the Applicant and Mr Valentine;

•  Mr Valentine said “look what can we do?” and there was a discussion about what options could be considered and the Applicant suggested a redundancy package to which Mr Valentine replied “maybe we can look into that option as well”;

•  at that time, the Respondent didn’t have much business due to COVID-19 impacts; and

•  based on that discussion, the Respondent did offer the Applicant a redundancy package on 1 November 2021 but, at that time, the Respondent did not know when businesses would start to come back to work.

[101] There are some discrepancies between the two versions of what transpired at the meeting on 18 October 2022. However, on 26 October 2021, Mr Krishnagiri emailed the Applicant and stated:

“Hi Bron,

We have reviewed your below query and now management has decided to ask you to work for next 5 weeks to cover the notice period from next Monday the 1st of November 2021. Please call us if you have any queries.”

[102] Based on the evidence before me, including that the Respondent did not respond to the Applicant’s email of 18 October 2021 seeking to correct his account of events, I accept the Applicant’s account of events that, during the meeting on 18 October 2021, he was verbally advised of the termination of his employment by reason of redundancy and was told at that time he would be paid notice in lieu. It is peculiar that the Respondent did not respond to the Applicant’s email of 18 October 2021 sooner, however, from the email sent by Mr Krishnagiri on 26 October 2021, it appeared that the Respondent had changed its position in one respect, being that it wanted the Applicant to work a five week notice period commencing 1 November 2021. In working through the notice period, as requested by the Respondent, the Applicant agreed to do so. However, the Respondent did not, at the time of its email of 26 October 2021, alter its decision to terminate the Applicant’s employment by way of redundancy.

[103] The question that remains is whether the discussions held during the meeting of 18 October 2021 satisfied the consultation requirements under clause 27 of the Award. The Respondent did not make submissions addressing this and the evidence is limited in this regard.

[104] On 1 November 2021, Mr Valentine wrote to the Applicant as follows:

“Dear Bron,

Sub: Termination of Employment by Redundancy

This letter is to advise you about the outcome of recent review into Cranetec Current situation. As a result of this review Cranetec must make some changes which are going to affect your current position with the company. Alternatively, by considering your ongoing employment company has offered you workshop based role through new contract which you decline to accept.

Unfortunately the consequence of above the company has no choice other than terminate your employment by redundancy. Your last day of employment with Cranetec is 4^th of December 2021…”

[105] This letter suggests that a discussion was had with Applicant at some stage where he was offered a workshop-based role as an alternative to termination. However, it is unclear from the letter as to whether this conversation occurred before or after the decision to terminate the Applicant’s employment was communicated to him and I have no evidence before me that establishes that the balance of the requirements in clause 27 of the Award have been met.

[106] It will not be case of genuine redundancy if an employer does not comply with any relevant obligation in a modern award or enterprise agreement to consult about the redundancy.

[107] Based on the evidence before me, I am satisfied that the consultation provision in the Award was not complied with and the dismissal was therefore not a case of genuine redundancy.

[108] Having considered each of the initial matters, and rejected the jurisdictional objection, I am required to consider the merits of the Applicant’s application.

Was the dismissal harsh, unjust or unreasonable?

[109] Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

[110] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 13

[111] I set out my consideration of each below.

Section 387(a) - was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?

[112] The reason for the Applicant’s dismissal was not related to the Applicant’s capacity or conduct. Accordingly, there cannot have been and was not a valid reason for his dismissal related to his capacity or conduct. In the circumstances of this case, I regard it as a neutral matter in relation to my consideration of whether the Applicant’s dismissal was harsh, unjust or unreasonable.

Sections 387(b) and (c) - was the Applicant notified of the valid reason and given an opportunity to respond to any valid reason related to their capacity or conduct?

[113] The matters in s.387(b) and (c) of the FW Act deal with whether there was procedural fairness in relation to a reason for dismissal related to capacity or conduct. As noted above, the reason for the Applicant’s dismissal was not related to the Applicant’s capacity or conduct. As such, I regard these as neutral matters in relation to my consideration of whether the Applicant’s dismissal was harsh, unjust or unreasonable.

Section 387(d) - did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?

[114] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.

[115] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:

“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”14

[116] In relation to s.387(d) of the FW Act, there is no evidence that the Applicant asked for a support person or that such a request was refused. I regard it as a neutral matter in relation to my consideration of whether the Applicant’s dismissal was harsh, unjust or unreasonable.

Section 387(e) - if the dismissal related to unsatisfactory work performance, was the Applicant warned about that unsatisfactory performance before the dismissal?

[117] The reason for the Applicant’s dismissal was not related to unsatisfactory work performance. I regard this as a neutral matter in relation to my consideration of whether the Applicant’s dismissal was harsh, unjust or unreasonable.

Sections 387(f) and (g) - to what degree would the size of the Respondent’s enterprise and absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?

[118] With respect to s.387(f) of the FW Act, neither party submitted that the size of the Respondent’s enterprise was likely to impact on the procedures followed in effecting the dismissal and I find that the size of the Respondent’s enterprise had no such impact. I regard this as a neutral matter in my consideration of whether the Applicant’s dismissal was harsh, unjust or unreasonable

[119] With respect to s.387(g) of the FW Act, it is however apparent that the Respondent did not have dedicated human resources management specialists at the time of the Applicant’s dismissal. I find that the likely impact of the absence of human resources specialists on the manner in which the Applicant’s dismissal was dealt with is that the communication regarding the factors leading to the Applicant’s dismissal was poor and the consultation provision in the Award was not complied with.

Section 387(h) - what other matters are relevant?

[120] Section 387(h) of the FW Act requires the Commission to take into account any other matters that the Commission considers relevant.

[121] I have earlier found that the Respondent had a valid reason to dismiss the Applicant having regard to its operational requirements and the impacts of the COVID-19 pandemic. While the reason is not related to the Applicant’s capacity or conduct, it is nevertheless a bona fide reason and weighs against a finding that the dismissal was unfair.

[122] However, I have found the Respondent failed to meet a technical requirement in that consultation of the nature prescribed by the Award did not occur before the decision to dismiss the Applicant was made and communicated to the Applicant at the meeting on 18 October 2021. I do accept that, since the Applicant’s injury, the nature of the work available to him changed as a result of the COVID-19 pandemic.

[123] However, the Respondent should have given the Applicant notice of the change and had discussions with him about this, including the nature of the change and the expected effect of the changes upon him. Instead, it seems to me that the communication with the Applicant was particularly poor, leading the Applicant to the conclusion that, despite being cleared for pre-injury duties, the Respondent was somehow punishing him for being injured at work by refusing to allow him to resume his pre-injury duties and confining him to a role that was different to his pre-injury role and that was largely workshop-based rather than site-based. Had proper consultation occurred, it may have avoided the breakdown in trust between the Applicant and Respondent and led to a different outcome than the termination of the Applicant’s employment. That the dismissal was conducted in breach of the consultation provision of the Award weighs in favour of a finding that the dismissal was harsh, unjust or unreasonable.

Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?

[124] I have made findings in relation to each matter specified in s.387 of the FW Act as relevant.

[125] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable. 15

[126] Having considered each of the matters specified in s.387 of the FW Act, I am satisfied that the dismissal of the Applicant was unjust, as the manner in which the termination was effected was unreasonable and the failure to consult with the Applicant as required by the consultation provision in the Award was unjust.

[127] I am therefore satisfied that the Applicant was unfairly dismissed within the meaning of s.385 of the FW Act.

Remedy

[128] Being satisfied that the Applicant:

•  made an application for an order granting a remedy under s.394 of the FW Act;

•  was a person protected from unfair dismissal; and

•  was unfairly dismissed within the meaning of s.385 of the FW Act,

I may, subject to the FW Act, order the Applicant’s reinstatement, or the payment of compensation to the Applicant.

[129] Under s.390(3) of the FW Act, I must not order the payment of compensation to the Applicant unless:

(a) I am satisfied that reinstatement of the Applicant is inappropriate; and

(b) I consider an order for payment of compensation is appropriate in all the circumstances of the case.

Is reinstatement of the Applicant inappropriate?

[130] The mere fact that the position that was occupied by the Applicant no longer exists does not render an order for reinstatement inappropriate. 16 As a Full Bench of the Australian Industrial Relations Commission observed, the adoption of such an approach “would tend to defeat the remedial purpose of the legislation.”17

[131] However, the Applicant did not seek an order for reinstatement and has since confirmed that he does not wish to be reinstated. In such circumstances, “the Applicant’s disposition is a sure guide to the Commission as to whether or not it would be appropriate to reinstate or re-employ the Applicant. To act contrary to the Applicant’s desired position in this respect would be to give effect to an order that may not yield a productive or cooperative workplace.”¹⁸

[132] The Applicant has also found alternative employment. As stated by a Full Bench, “[i]n assessing whether reinstatement is an appropriate remedy, it is obviously relevant as to whether the dismissed employee has obtained alternative employment. Where that new employment is satisfactory to the employee, it will be no remedy at all to reinstate the employee to the pre-dismissal employment to which the employee, for well-founded reasons, has no desire to return.” 19

[133] In the circumstances, I find that reinstatement is inappropriate.

Is an order for payment of compensation appropriate in all the circumstances of the case?

[134] Having found that reinstatement is inappropriate, it does not automatically follow that a payment for compensation is appropriate. As noted by the Full Bench, “[t]he question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one”. 20

[135] Where an applicant has suffered financial loss as a result of the dismissal, this may be a relevant consideration in the exercise of this discretion. 21

[136] I now deal with the issue of compensation.

Compensation - what must be taken into account in determining an amount?

[137] Section 392(2) of the FW Act requires all of the circumstances of the case to be taken into account when determining an amount to be paid as compensation to the Applicant in lieu of reinstatement including:

(a) the effect of the order on the viability of the Respondent’s enterprise;

(b) the length of the Applicant’s service;

(c) the remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed;

(d) the efforts of the Applicant (if any) to mitigate the loss suffered by the Applicant because of the dismissal;

(e) the amount of any remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for compensation;

(f) the amount of any income reasonably likely to be so earned by the Applicant during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the Commission considers relevant.

[138] I consider all the circumstances of the case below.

Section 392(2)(a) - effect of the order on the viability of the Respondent’s enterprise

[139] While I accept that the Respondent suffered adverse effects from the COVID-19 pandemic and its impacts, there is no evidence to suggest that an award of compensation would have an effect on the viability of the Respondent’s enterprise.

Section 392(2)(b) - length of the Applicant’s service

[140] The Applicant’s length of service was almost 8 years, if casual employment is to be included, or almost 7 years taking into account his service as a full-time employee.

[141] I consider that the Applicant’s length of service does not support reducing or increasing the amount of compensation ordered.

Section 392(2)(c) - remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed

[142] As stated by a majority of the Full Court of the Federal Court, “[i]n determining the remuneration that the Applicant would have received, or would have been likely to receive… the Commission must address itself to the question whether, if the actual termination had not occurred, the employment would have been likely to continue, or would have been terminated at some time by another means. It is necessary for the Commission to make a finding of fact as to the likelihood of a further termination, in order to be able to assess the amount of remuneration the employee would have received, or would have been likely to receive, if there had not been the actual termination.” 22

[143] I am satisfied that, had the Respondent consulted with the Applicant in compliance with the consultation provision of the Award, it still would have dismissed the Applicant. Had the Respondent undertaken such consultation, I find that this would have taken place over approximately one week. As such, I find that the Applicant’s employment would likely only have continued for a further period of one week and, had the Applicant been working, the amount of remuneration that the Applicant would have received or would have been likely to receive during that period is his pay in relation to 38 ordinary hours of work, being $1,786.00 before tax. While the Applicant was provided with and did work through his notice period, he would also have been entitled to redundancy pay in accordance with the National Employment Standards (NES). Noting that s.119(3) of the FW Act provides that a reference to continuous service with the employer does not include periods of employment as a casual employee of the employer, for the purposes of calculating redundancy, I find that, based on the Applicant’s start date of 13 January 2014 as a full-time employee, he would have been entitled to be paid 11 weeks redundancy under the NES, calculated at his base rate of pay. This amounts to a further amount of $19,646.00 before tax.

Section 392(2)(d) - efforts of the Applicant to mitigate the loss suffered by the Applicant because of the dismissal

[144] The Applicant must provide evidence that he has taken reasonable steps to minimise the impact of the dismissal. 23 What is reasonable depends on the circumstances of the case.24

[145] Having decided that the Applicant’s employment would have continued for an additional week, I only need to consider the efforts made to mitigate the loss in this week. A complexity arises here in that, on 15 November 2021, the Respondent appeared to have changed its position in relation to the Applicant’s redundancy after providing notice of termination to the Applicant. The offer put to the Applicant on 15 November 2021 states that the Applicant will be paid a normal time rate of $47 per hour, overtime rate of $70.50 per hour and double time rate of $94 per hour. This is in line with what he was paid for his role prior to his pre-injury duties.

[146] As I have earlier found, the Respondent was unable to retract its notice of termination without the consent of the Applicant, however I have considered whether the Applicant’s failure to take up the offer made by the Respondent on 15 November 2021 means that he has not taken steps to mitigate his loss. I am not satisfied that the role offered to the Applicant on 15 November 2021 was the same as the one he was working in during his pre-injury duties. The Applicant’s role was redundant, he was notified of the termination of his employment and was entitled to payment of redundancy in line with the NES. However, while the trust between the Applicant and Respondent had clearly deteriorated, as a result of the pay dispute when he was unable to return to his pre-injury duties and poor communication about why he was unable to return to his pre-injury duties and role, the Applicant did agree to work through his notice period. I don’t see any reason why he couldn’t have negotiated to stay on a bit longer in the workshop-based role that was offered to him and which was paying the same amount of money as his pre-injury role as a measure to mitigate his loss while he tried to source alternative employment. As such, I have decided to reduce the amount of compensation to be ordered by one week.

Section 392(2)(e) - amount of remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for compensation

[147] The evidence does not establish that the Applicant earned any remuneration from employment or other work in the week following his dismissal.

Section 392(2)(f) - amount of income reasonably likely to be so earned by the Applicant during the period between the making of the order for compensation and the actual compensation

[148] This factor is not relevant in the circumstances of this matter.

Section 392(2)(g) - other relevant matters

[149] I do not consider there are any other relevant matters beyond those already addressed above.

Compensation – how is the amount to be calculated?

[150] As noted by the Full Bench, “[t]he well-established approach to the assessment of compensation under s.392 of the FW Act… is to apply the “Sprigg formula””, derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul’s Licensed Festival Supermarket (Sprigg). 25 This approach was articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages.26

[151] The approach in Sprigg is as follows:

Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).

Step 2: Deduct monies earned since termination. Workers’ compensation payments are deducted but not social security payments. The failure of an applicant to mitigate his or her loss may lead to a reduction in the amount of compensation ordered.

Step 3: Discount the remaining amount for contingencies.

Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.

[152] As noted above, I find that the Applicant would likely have remained in employment for a further period of one week. This estimate of how long the Applicant would have remained in employment is the “anticipated period of employment”. 27 During this week, he would have been entitled to payment of one week’s wages in addition to 11 weeks’ redundancy pay. However, as I have noted, I have decided to reduce the amount of compensation to be ordered by one week as I don’t see any reason why the Applicant couldn’t have negotiated to stay on a bit longer in the workshop-based role that was offered to him, and which was paying the same amount of money as his pre-injury role, as a measure to mitigate his loss.

[153] I have not applied any discount for contingencies, particularly considering the Applicant was cleared for pre-injury duties and has secured alternative employment. I have decided to leave taxation as a matter for the parties.

[154] In light of the above, I order that the Respondent pay the Applicant an amount of $19,646.00, less taxation to be deducted as required by law, calculated at 11 weeks’ pay based on the Applicant’s entitlement under the NES and a 38 hour week at the Applicant’s base rate of pay of $47.00 per hour.

[155] An order requiring the payment of this amount within 14 days will be issued with this decision.

COMMISSIONER

Appearances:

Mr B Ryzak on his own behalf.

Mr S Valentine and Mr R Krishnagiri on behalf of the Respondent.

Hearing details:

2022.

Sydney (by Video using Microsoft Teams).

April 19.

Printed by authority of the Commonwealth Government Printer

<PR744615>

 1   Applicant, ‘Outline of argument: objections’, filed 14 March 2022, 5d.

 2   Applicant, ‘Submissions in Reply’, filed 1 April 2022, ‘Question 5f’.

 3   Applicant, ‘Outline of argument: objections’, filed 14 March 2022, 5d.

 4   Respondent, ‘Outline of argument: objections’, filed 31 March 2022, 5a.

 5   Ibid, 5b.

 6   Ibid, 5f.

 7   Ibid, 5c.

 8   Ibid, 5d.

 9   [1984] FCA 378.

 10   Respondent, ‘Form F3 – Employment response to unfair dismissal application’, filed 15 February 2022, 1.7.

 11   Applicant, ‘Outline of argument: objections’, filed 14 March 2022, 5d.

 12   Applicant, ‘Witness Statement of Bronislaw (Bron) Ryzak’, filed 14 March 2022.

 13   Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

14 Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].

 15   ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]-[7].

 16   Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198, [17].

 17   Smith v Moore Paragon Australia Ltd PR942856 (AIRCFB, Lawler VP, Kaufman SDP, Mansfield C, 20 January 2004), [15].

18 Taylor v C-Tech Laser Pty Ltd [2013] FWC 8732, [58].

 19   Seitz v Ironbay Pty Ltd t/a City Beach IGA [2018] FWCFB 1341, [24].

 20   Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198, [9].

 21   Vennix v Mayfield Childcare Ltd [2020] FWCFB 550, [20]; Jeffrey v IBM Australia Ltd [2015] FWCFB 4171, [5]-[7].

 22   He v Lewin [2004] FCAFC 161, [58].

 23   Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34], citing Lockwood Security Products Pty Ltd v Sulocki and Ors PR908053 (AIRCFB, Giudice J, Lacy SDP, Blair C, 23 August 2001), [45].

 24   Ibid, citing Payzu Ltd v Saunders [1919] 2 KB 581.

 25   (1998) 88 IR 21.

 26   [2013] FWCFB 431.

 27   Ellawala v Australian Postal Corporation Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000), [34].