[2010] FWA 5676

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

Joe Solari
RLA Polymers Pty Ltd


SYDNEY, 30 JULY 2010

Alleged unfair dismissal - whether genuine redundancy.

[1] This decision determines a jurisdictional challenge to an unfair dismissal application under s 394 of the Fair Work Act 2009 (‘the Act’), by Mr Joe Solari (‘the applicant’) following the termination of his employment by RLA Polymers Pty Ltd (‘the respondent’) on 29 January 2010. The matter was unable to be resolved at a conciliation conference on 25 February 2010 and was subsequently referred to me for determination as to whether the applicant’s termination of employment was a genuine redundancy. If that question is determined in the affirmative, then the applicant’s claim for relief from unfair dismissal must be dismissed for want of Fair Work Australia’s (FWA’s) jurisdiction under s 385 of the Act.

[2] The applicant’s letter of termination was expressed as follows:


[3] The applicant commenced employment as the respondent’s Factory Manager at its Wetherill Park site in 1994. When the respondent acquired another site at Pendle Hill, the applicant transferred to that site as Dispatch Manager. After two years at Pendle Hill, the applicant returned to Wetherill Park as a Team Leader. He said he managed both sides of the respondent’s liquid and powder compound business, supervising six other employees. He said that liquid compounding is still carried out at the Pendle Hill site.

[4] The applicant was advised on 3 December 2009 that the Wetherill Park site was to close, although discussions about the likelihood of closure had occurred in late October and early November 2009. The applicant was given the option of working out nine weeks of notice until 29 January 2010, or receiving five weeks salary in lieu of notice. The applicant chose to work out his notice. During January 2010, the Managing Director, Mr David Preston, visited the site and expressed his sorrow to the applicant for his redundancy and thanked him for his loyal service. The applicant mentioned to him that he would be willing to take a lesser position at Pendle Hill and Mr Preston raised this possibility with Mr Steve Etches, General Manager, Operations. However, Mr Etches said that he had examined every position on offer at Pendle Hill, but none met the skills set of the applicant.

Case for the applicant

[5] The applicant strongly contested the respondent’s view that no other position could be found for him at Pendle Hill or that his skills did not match the requirements of any available role. He said that he was the only employee out of five who transferred who was not offered a position at Pendle Hill, nor had he been offered any alternative position or retraining. He would have been happy to accept a lesser position. The applicant said that five casual staff were taken over to Pendle Hill in various jobs that he was more than capable of performing, including as a forklift driver.

[6] The applicant said it was unfair, that after 16 years of loyal, conscientious service and with his various skills, he could not be found an alternative position, particularly now that he is aged 60. He agreed the respondent had been good to him, but he queried why they could not keep him on for a few more years until his retirement. Despite getting nine weeks notice, he had worked out his notice as a loyal ‘Company’ man.

[7] The applicant said there was no real consultation with him as to the possibility of alternative positions.

Case for the respondent

[8] Mr Etches acknowledged that while the respondent did transfer a number of operators to Pendle Hill, all, bar one, were casuals employed through an agency. The one permanent employee was more skilled than the applicant as a plant operative in powder production. Mr Etches said various roles had been considered for the applicant. There were no longer any team leader positions and the only operator position for his skills was not run from New South Wales. The respondent did not believe that the applicant had the appropriate skills as an operator in the Ceramic Tile Adhesives (CTA) and Levelling side of the business. The applicant had struggled with these duties at Wetherill Park, so much so that the New South Wales Production Supervisor had to relocate to Wetherill Park to assist him. Other options had been considered, but given the depressed state of the industry, there were no roles for him in the short to medium term.

[9] In oral evidence, Mr Etches said that the casual staff were initially engaged to set up the additional operations at Pendle Hill and their numbers were being progressively reduced until there may be one or two casuals engaged to only cover absences and the leave of permanent employees. This was all part of the upgrading of the plant as part of the business restructure and the plan is to not retain any casuals on a regular basis. Mr Etches said the respondent was more than happy to have the applicant engaged as a casual, if he is registered with the agency, and his skills are required on a short term basis. Mr Etches added that of the four casual employees who did transfer over, three were no longer engaged.

[10] Mr Louis Parma, the respondent’s Commercial Director, said that the applicant had been a good and loyal employee for many years. The plant in New South Wales has been automated and rationalised. On the CTA side, by the end of August, employee numbers will reduce from 13 to five. This did not leave much scope, so the skill set of employees was very important. Unfortunately, the applicant did not have these skills. He said the respondent cannot hold on to people for the sake of it; that would risk the sustainability of the jobs of the respondent’s 130 other employees. The respondent holds the applicant in high esteem. However, his arguments were emotive and emotional.


[11] Section 385 of the Act defines an unfair dismissal and is expressed as follows:

The meaning of genuine redundancy is found at s 389 of the Act:

[12] There is a long line of authority in this Tribunal, its predecessor and other industrial tribunals as to the meaning of redundancy. Shortly stated it means that the employer, either for economic reasons or the introduction of new technology or company restructure, no longer requires the job to be performed by anyone. In a recent decision of FWA in Ulan Coal Mines Limited v Henry John Howarth and others [2010] FWAFB 3488, the Full Bench considered the new legislative regime as to the test of a genuine redundancy. At paras [15] to [20] said this:

[13] As mentioned above, the Act specifically recognises that a redundancy may not be genuine in circumstances where the employer fails to meet its obligations to employees who are facing redundancy under the terms of the applicable Award. In Shop, Distributive and Allied Employees’ Association, New South Wales, and WH & HO Wills Holdings Ltd [2000] NSWIRComm 98, I described these obligations as follows:

There are also obligations on employees facing redundancy, but these are not relevant to the present case.

[14] In my view, the question before FWA in this case, is relatively straightforward. The applicant did not seriously, or at all, dispute the respondent’s evidence that it had undergone a significant rationalisation of its New South Wales operations resulting in the closure of one of its two plants.

[15] It is perfectly understandable that the applicant would feel hurt, upset and even betrayed by the respondent’s decision to make him - and only him - redundant. It is also understandable that he believes he has the skills to perform the work of the other permanent employees. Most employees after 16 years service would feel they have the experience and knowledge to perform work across the broad spectrum of a company’s operations. This is a natural human reaction. However, when compared to others, this might not always be the reality. Ultimately however, it is the prerogative of Management to manage its business as it sees fit; subject to treating its employees fairly and honestly.

[16] Given the applicant’s 16 years of loyal and conscientious service (which I accept unreservedly), and the respondent’s genuine expressions of regret over the applicant’s redundancy (which I also accept), I have a great deal of sympathy for the applicant. However, sympathy alone does not overrule the legal position or the policy intent of the Act, which denies access to an unfair dismissal remedy where an employee’s termination of employment is a genuine redundancy, as defined. Any forced redundancy is always most regrettable and likely to have a severe impact on an employee and his/her family, particularly someone of the applicant’s age. This is, after all, why all employees are protected, in part, by redundancy payments under their relevant Award or Agreement and why minimum redundancy standards are now a legislated feature of the National Employment Standards (NES). I have no doubt that the respondent acted appropriately in that regard and, in fact, provided a greater period of notice than the Award provides.

[17] Further, I am satisfied, based on the state of the respondent’s evidence, that the applicant’s redundancy was genuine and, in particular, I note and accept the following propositions:

1. The respondent had warned the applicant of the possibility of redundancy in October / November last year;

2. The respondent attempted to find an alternative position for the applicant;

3. The Managing Director instructed his Operations Manager to explore alternative options for the applicant, but none were available in New South Wales; and

4. In truth, only one permanent employee was transferred to Pendle Hill and the applicant did not dispute the respondent’s evidence that the other employee’s skills were superior to his own;

5. The respondent had a difficult choice to make on the basis of its operational requirements and its undoubted knowledge of the applicant’s skills and experience;

6. The number of casual or agency staff at Pendle Hill have been progressively reduced and, in the future, and are only likely to cover short term absences or the leave of permanent employees;

7. The respondent genuinely regretted the circumstances of the applicant’s termination of employment and the applicant acknowledged that the respondent had treated him well during his employment. There is no reason to doubt the respondent’s bona fides in that regard.

[18] In my opinion, the respondent’s conduct and actions were appropriate in all the circumstances. I can find no basis to conclude that the applicant’s termination of employment was not a genuine redundancy. In particular, I do not consider it to be reasonable, in all the circumstances, to have re-deployed the applicant to ‘an associated entity of the employer’ being the site at Pendle Hill. Accordingly, this application under s 394 of the Act for an unfair dismissal remedy is beyond the jurisdiction of the Tribunal and must be dismissed. An order giving effect to that conclusion is published with this decision.



Mr J Solari, unrepresented

Mr S Etches for the Company

Hearing details:



4 June

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