[2016] FWC 6971
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.394—Unfair dismissal

Peter Garratt
v
Thiess Pty Limited
(U2015/16223)

COMMISSIONER SPENCER

BRISBANE, 28 SEPTEMBER 2016

Application for relief from unfair dismissal - jurisdictional objection - genuine redundancy

Introduction

[1] This Decision relates to an application made by Mr Peter Garratt (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy alleging that the termination of his employment from Thiess Pty Limited (the Respondent) was harsh, unjust or unreasonable. The Applicant was employed as a mining operator at the Curragh Mine. The Applicant was covered by the Thiess Curragh Mine Enterprise Agreement 2013 (the Agreement). The Respondent provides contract mining services to mining operations throughout Australia, including to the Curragh Mine, which is located at Blackwater in Central Queensland and is owned by Wesfarmers Curragh Pty Ltd. The Applicant commenced employment on 4 November 2011, his employment was terminated on 5 November 2015.

[2] The Respondent raised a jurisdictional objection pursuant to s.385(d) in relation to the application, that the termination of the Applicant’s employment was due to genuine redundancy, and therefore, he had not been unfairly dismissed. Where the Respondent raises a jurisdictional objection, the onus is on the Respondent to satisfy the Commission of their case. 1

[3] Directions were issued for the filing of submissions in relation to the jurisdictional objection, and the substantive unfair dismissal application. The Applicant’s primary argument was, that the dismissal was not a case of genuine redundancy, on the basis that his job was still required to be performed (s.389(1)(a)). That is, the Applicant argued the Respondent had employed a number of labour hire personnel to perform the job of the Applicant. In addition, the Applicant submitted the Respondent did not comply with its obligation in the Agreement; to consult about the redundancy (s. 389(1)(b)). Further, the Applicant stated that it would have been reasonable for the Respondent to have redeployed him into an alternative position (s.389(2)).

[4] In addition, the Applicant argued that his employment was terminated whilst he was on WorkCover, and because of his absence from the workplace information about alternative job positions within Thiess was not shared with him because he was on WorkCover, and being paid by WorkCover. The Applicant contended that he was not eligible to apply for an alternative position with Thiess, or any other employer because he was on WorkCover. The Applicant also submitted that the Respondent breached s232B of the Workers Compensation and Rehabilitation Act 2003; (as set out below) as he had been on WorkCover at the time of his dismissal.

[5] The Applicant was initially unfit to proceed at the time the matter was allocated to be arbitrated, and accordingly the hearing was delayed until he provided a medical clearance to proceed. The matter was heard on 21 September 2016 in Brisbane.

[6] Whilst not all of the evidence and submissions in the matters have been referred to in this Decision, all of such have been considered.

Relevant legislative provisions

[7] The application has been made pursuant to s.394 of the Act, which provides as follows:

“394 Application for unfair dismissal remedy

[8] Prior to considering the merits of the matter the Commission must decide those matters prescribed by s.396 of the Act as follows:

[9] There is no dispute that the application was filed within the time period prescribed in s.394(2) of the Act.

[10] There is no dispute that the Small Business Fair Dismissal Code does not apply in this case. The Respondent is not a small business employer as it had employed more than 15 employees at the time of the Applicant’s dismissal.

[11] The Respondent has raised an objection to the Commission’s jurisdiction on the basis that the termination of the Applicant’s employment was a genuine redundancy. By consent the jurisdictional and the merits of the matter were heard together.

[12] In relation to the jurisdictional objection an unfair dismissal does not include a dismissal where it was a case of genuine redundancy:

“385 What is an unfair dismissal

[13] A person is protected from an unfair dismissal under s382:

382 When a person is protected from unfair dismissal
                   A person is protected from unfair dismissal at a time if, at that time:

[14] A genuine redundancy is one within the meaning of s.389 of the Act which states:

“389 Meaning of genuine redundancy

[15] The Applicant submitted that it was reasonable that he was redeployed as per s.389(2)(a)&(b).

[16] The Applicant submitted that he was absent from his employment with Thiess on WorkCover, following a work related accident/injury that he sustained whilst working a shift at Thiess Curragh North. The Applicant stated that he was dismissed from his employment with Thiess seven months following his workrelated injury. The Applicant submitted the Respondent had breached s.232B of the Workers Compensation and Rehabilitation Act 2003:

Background and Submissions

[17] The Respondent is a contract mining services organisation. The Respondent was contracted at the Curragh North Mine (“the Mine”), which is located at Blackwater in Central Queensland, by mine owner Wesfarmers Curragh Pty Ltd (“WCPL”) to provide certain contract mining services.

[18] The Applicant commenced employment with the Respondent on 4 November 2011 as a Mine Operator, at the Mine. At the time of the termination of his employment on 5 November 2015, the Applicant was on WorkCover, and being paid by WorkCover, due to an injury he sustained at work.

The Mine Restructure

[19] The Applicant in these proceedings submitted that in September 2015, the Respondent was advised by Wesfarmers Curragh Pty Ltd (“WCPL”) that a restructure of operations at the Mine was to take effect from November 2015, which would result in a reduction of positions required. The proposed reduction in the numbers of jobs, across the mine was approximately 100 direct employees and 50 labour hire personnel.

[20] The Respondent’s evidence is that due to significant commercial challenges faced by WCPL as a result of an ongoing depressed coal market, WCPL advised the Respondent that it was required to reduce operational costs through a decreased production schedule. The Mine schedule was required to change from 5 Production Excavator fleets to 3 Production Excavator fleets. Additionally, the shift hours were required to change from 12 hour shifts to 10 hour shifts.

[21] Mr Adrian McCowan (Mr McCowan) the Employee Relations Manager of Thiess Pty Ltd, was requested by Ms Heather Parry (Ms Parry), Thiess’ Project General Manager at the Mine, to assist with the necessary workplace change arrangements.

[22] A consultation process took place in relation to the proposed restructure. It commenced on 16 September 2015 and concluded in October 2015.

[23] The Respondent submitted that as a direct result of the operational changes, the Applicant’s job, along with those of approximately 100 employees and 50 labour hire personal, were no longer required to be done by the Respondent. The Applicant did recognise that there had been a reduction in the number of jobs within Thiess.

The Redundancy Process

[24] On 16 and 17 September 2015 the Respondent notified employees at shift meetings that it would be required to reduce operational output at the Mine, and that there would be a requirement for the reduction of approximately 100 direct positions, across various disciplines at the Mine, as well as roster changes. At those meetings, the Respondent submitted that it discussed the introduction of the required changes, the effects of those changes on employees, and measures to mitigate adverse effects. The Applicant was not present at these meetings as he was on WorkCover.

[25] On 18 September 2015 the Respondent contacted the Applicant by telephone to advise him of the content of the abovementioned meetings, and to confirm his email address. The Respondent subsequently emailed the Applicant on 21 September 2015 a Notification Letter, a copy of the Employee Presentation and a Voluntary Redundancy form, which were all submitted in Mr McCowan’s Witness Statement 2. It was submitted by Mr McCowan that applications for voluntary redundancy were considered and finalised in late September 2015. The Applicant did not submit a Voluntary Redundancy form.

[26] On 5 and 6 October 2015, the Respondent held further onsite meetings to notify those employees who were being made redundant, that their roles were redundant.

[27] On 9 October 2015, the Respondent contacted the Applicant via telephone and advised him that his employment was being made redundant, which would take effect on 5 November 2015.

[28] The Applicant submitted that his dismissal was unfair, as it was not a case of genuine redundancy, as his job was still required to be performed as per s.389(1)(a), and options for his redeployment had not been exhausted as per s.389(2). The Applicant contended that as labour hire employees were still being used to fulfil the duties he performed in the redundant position, his dismissal was not a genuine redundancy. The Respondent clarified that there is a small labour hire workforce being used on site to fulfil contractual obligations on a particular flexible basis. The Respondent contended that the labour hire employee’s positions were subject to the market, as the Respondent required flexibility to meet client’s needs which are subject to change at short notice.

[29] The consideration of a redundancy requires an assessment of all the matters in s.389 of the Act.

s.389(1)(a) – Job no longer required to be done

[30] In considering whether a person’s job is no longer required to be performed, the Explanatory Memorandum to the Fair Work Bill relevantly provides:

“Clause 389 – Meaning of genuine redundancy

[31] The decision of Ulan Coal Mines Limited v Horwarth (“Ulan No.1”) 3 refers to the distinction between jobs and duties. An inquiry (into whether the job is required to be performed) is not directed to whether there are duties left to perform, rather that the inquiry should be to whether the actual job remains after the restructure. In Ulan No. 1, the job had changed, while the duties remained.

[32] The Respondent set out that the Applicant’s job was redundant in accordance with s.389(1)(a).

s.389(1)(b) - Consultation

[33] In the circumstances of redundancy, the obligation to consult is not an absolute obligation to consult. The Full Bench in Ulan Coal Mine Limited v Henry Jon Howarth and others (“Ulan No. 1”) said:

[34] The obligation for consultation is found in the relevant enterprise agreement, specifically Clause 32 “Consultation regarding Major Workplace Change” of the Thiess Curragh Mine Enterprise Agreement 2013. This clause states:

Summary of Submissions

s.389(1)(a) – Applicants Submissions on job no longer required to be done

[35] In considering when a person’s job is no longer required to be performed s.389(1)(a) provides:

[36] The Applicant contended that his job was still required to be performed.

[37] That Applicant submitted that he was employed by Thiess for four years at the time of his redundancy. The Applicant stated that his role was in the position of Dump Truck Operator, where he was required to drive both diesel and electric trucks, and work diggers, loaders, and electric shovels.

[38] The Applicant stated that he also worked on the shovel crew. The Applicant submitted that this was a specialised job where there were only twelve crew members who were competent operators. The Applicant stated that he had four years’ experience working with the shovel crew, and he was the longest trained operator in the crew, that he worked with.

[39] The Applicant stated that the shovel operation at North Curragh is the highest priority machine, and it continued to be operated (after the Applicant was made redundant) by other employees, who continued to operate the machines and fulfil the Applicant’s role. The Applicant submitted that labour hire workers were also utilised to maintain a ROM contract, for cost efficiency and flexibility at the expense of permanent Thiess employees. The Respondent agreed that labour hire workers were being used in these roles as it was operationally necessary to have the flexibility of daily hire employees.

s.389(1)(a) – Respondents Submissions on job no longer required to be done

[40] The Respondent submitted that due to significant commercial challenges faced by Wesfarmers Curragh Pty Ltd (WCPL) as a result of an ongoing depressed coal market, WCPL advised the Respondent in September 2015 that it was required to reduce its operational costs by decreasing its production schedule.

[41] In the Witness Statement of Mr McCowan , Employee Relations Manager for the Respondent, he submitted that as a result of the directive from WCPL, the Respondent had to restructure its operations at the Curragh Mine (the Mine) to change from a 5 Production Excavator fleet operation, to 3 Production Excavator fleet operation in order to achieve WCPL’s planned material volumes 5. This change took effect from November 2015, subsequently resulting in a reduction of the number of positions required at the Mine.

[42] The Respondent submitted that the reduction in positions across the Mine resulted in the redundancy of approximately 100 direct employees, and 50 labour hire personnel (consisting of 65 direct Production Operators, 50 labour hire Production Operators, and 35 direct employees from Maintenance and Staff positions).

[43] As referred to, the Respondent stated that employees were initially notified on 16 and 17 September 2015 at shift meetings that it was required to reduce its operational output at the Mine, which would result in the likely requirement for approximately 100 direct positions across various disciplines at Thiess to be reduced, as well as changes to rostered work hours.

[44] The Respondent submitted that it discussed with its employees, including the Applicant, the introduction of the changes and the impact that these changes would have, along with measures to avert or mitigate the adverse effect that such changes could have on employees.

[45] The Respondent submitted that it provided in writing to employees all relevant information about the changes, including the nature of the proposed changes, and the expected effects of the changes on employees and any other matters that were likely to have effect on employees.

[46] The Respondent submitted that it used its best endeavours to contact all employees who were not on site at the time of the face to face consultations. The Respondent stated that employees were initially contacted by telephone and where contact was successfully made, consultative discussions took place in reference to the above matters, and the relevant notification material was also sent to the employees via their nominated email address. The Respondent stated that during the consultation period, the Respondent opened applications for voluntary redundancies to be submitted. The Respondent stated that all applications were considered and finalised before a final decision was made on the necessity for further redundancies.

[47] The Respondent submitted that due to the required workforce reductions not being achieved through the voluntary redundancy process, a structured involuntary redundancy selection process was conducted, and it was through this process that the Applicant’s job was made redundant.

[48] The Respondent submitted that it made all reasonable attempts to redeploy displaced employees within the business, or within associated entities, prior to enacting involuntary redundancies. The Respondent stated that the actions that it took included identifying and reviewing all vacancies within the various entities, and providing details of vacancies to employees. The Respondent informed its employees verbally and on noticeboards, on a weekly basis, of vacancies, and asked its employees to nominate any roles they wished to be considered for. The Respondent submitted that it arranged consultation with relevant entities for any employees, who expressed an interest in a particular role.

[49] The Respondent stated that the number of roles available for redeployment within Thiess were limited due to a decline in production positions at various other mining operations throughout Australia, and the fact that prior redundancy programs at the Respondent’s other operational sites had largely exhausted alternative roles.

[50] The Respondent stated that employees of Thiess who were on site and who had been selected for involuntary redundancy were notified of their redundancies on and from 5 October 2015. The Respondent submitted that the Applicant had not been on site on 5 or 6 October, and despite attempts by the Respondent, it was unable to contact the Applicant prior to 9 October 2015. The Respondent stated that on 9 October 2015, the Applicant was advised of his pending redundancy via telephone, and subsequently, information regarding the redundancy and redeployment opportunities were emailed to the Applicant.

s.389(1)(b) – Applicants submissions on consultation

[51] In considering when a person’s job is no longer required to be performed s.389(1)(b) provides:

[52] The Applicant submitted that he was contacted by Mr McCowan in September 2015, when he was informed that Thiess would be looking at making some redundancies. The Applicant stated that he was not given a time frame of when this was going to occur.

[53] The Applicant stated that he was not contacted by Thiess until Mr McCowan contacted him on 9 October 2015, when the Applicant was informed that his job was being made redundant on 5 November 2015. The Applicant submitted that he was not provided with any information as to why his position was being made redundant. The Applicant stated that he was not offered any counselling or support from Thiess, and contended that all other employees received meetings and were offered information workshops about the redundancies being made. The Applicant submitted that other employees were provided with an explanation as to why their positions was being made redundant, and were also offered counselling. The Applicant stated that alternative job positions were also posted on the staff notice boards at the Thiess Curragh North site. The Applicant submitted that he was not included in this information sharing.

[54] The Applicant stated that at the time he was dismissed, he was absent from work on Work Cover, as a result of a work related accident/injury that he sustained during a working shift at Thiess Curragh North. The Applicant submitted that because he was on WorkCover, and being paid by WorkCover, he was not eligible to apply for any alternative position within Thiess or any other employer.

s.389(1)(b) – Respondent’s submissions on consultation

[55] The Respondent submitted that it satisfied its obligation to consult with the Applicant. The Respondent stated that the requirement by WCPL to reduce output resulted in the initiation of consultation discussions with employees of Thiess.

[56] The Respondent submitted that employees were initially notified on 16 and 17 September 2015 at shift meetings that it would be required to reduce operational output at the Mine, and that there would likely be an approximate reduction of 100 positions across various disciplines at the Mine.

[57] It was submitted by Mr McCowan that on the abovementioned dates, he attended the Mine and observed Ms Parry, at Thiess, conduct employee presentations where she discussed with those employees who would be affected by the introduction of the proposed changes, the effects the changes were likely to have on the employees, and the measures which would be implemented to mitigate the adverse effect of such changed on employees. Mr McCowan contended that during the briefing he observed employees individually provided in writing all relevant information about the changes to the operation of the Mine, including the nature of the proposed changes, the expected effects of the changes on employees and any other matters that were likely to affect the employees, including proposed changes to work hours. 6 The Applicant was offered the appropriate notice period and redundancy payment.

[58] The Respondent further submitted that it used its best endeavours to contact all employees who were not on site at the time of the face-to-face notifications. Employees were initially contacted by telephone and where contact was successfully made, consultative discussion took place in reference to the above matters discussed by Ms Parry and the relevant notification material was sent to the employees via their nominated email address. The Applicant was notified of the basis of the restructuring of the mine which caused the Respondent to necessarily downsize which, led to the genuine redundancies.

[59] The Respondent stated that discussions with the Applicant were conducted by phone due to the Applicant being absent from the site during consultation and notification periods. The Respondent submitted that this process should be distinguished with the situation in the decision of UES (Int’l) Pty Ltd v Harvey 7 where the employee was found not to have been consulted in circumstances where a decision was made during an employee’s leave and implemented without any discussion with the employee.

[60] It was submitted by Mr McCowan that the Applicant was a non-attendee at the presentations conducted by Ms Parry. Mr McCowan stated he personally contacted the Applicant, though initial contact was unsuccessful, and he left a message with the Applicant to return his telephone call. The Applicant returned Mr McCowan’s telephone call on 18 September 2015 where he confirmed the Applicant’s email address so he could provide the Applicant with copies of the material that were provided at the briefing sessions. Mr McCowan submitted that he sent the material to the Applicant’s email on 21 September 2015. 8 Mr McCowan stated that the material sent comprised of the Notification Letter, a copy of the Employee Presentation and a Voluntary Redundancy application form.9

[61] Mr McCowan submitted that applications for voluntary redundancies were considered and finalised in late September 2015, and involuntary redundancy selection were undertaken in early October 2015. 10 Mr McCowan submitted that on 5 and 6 October 2015 he attended the Mine and observed further employee debriefings, where employees were informed of the final outcome of the redundancy process; Mr McCowan further submitted that the Applicant was not present at either of these briefings.11 The Applicant conceded during his evidence that he was provided with an employee assistance form, the briefing document from the employee workshops, the list of alternative positions available within Thiess and an Expression of Interest form. The Applicant also recognised that he had been informed by telephone of the redundancy, and had engaged in discussions with the Respondent at that time about rental assistance and his safety certificate.

Mr McCowan submitted that he contacted the Applicant on 9 October 2015 by telephone to inform him that he had been identified for involuntary redundancy, which would take effect on 5 November 2015. Mr McCowan provided a copy of his contemporaneous handwritten notes taken during the telephone call with the Applicant. Mr McCowan stated that during this discussion the Applicant confirmed that he had received the material sent to him via email on 21 September 2015. 12 Mr McCowan provided a copy of the Notification Letter and Employee Presentation emailed to the Applicant on 21 September 2015

[62] Mr McCowan submitted that during his telephone call with the Applicant on 5 November 2015, he informed the Applicant that his termination date would be 5 November 2015 and that he would receive a formal notification letter, along with an estimate of his redundancy entitlement, and other information pertaining to his redundancy, such as Centrelink information and Long Service Leave application. Mr McCowan further stated that he advised the Applicant that he would also be provided with an Expression of Interest Form Redeployment and a list of current vacancies available within Thiess. 13

[63] The Respondent submitted it complied with the obligation to consult under the relevant enterprise agreement, and s.389(1)(b) is satisfied. The Applicant was offered the opportunity to return an Expression of Interest form, and to review the list of jobs available with Thiess. The Applicant did not return this form.

[64] On the basis of the submissions and evidence provided, I accept the Respondent made reasonable endeavours to comply with the obligation to consult with the Applicant under the Agreement, and s.389(1)(b) is satisfied.

s.389(2) –Applicants submissions on redeployment

[65] In considering whether a person’s dismissal was not a case of genuine redundancy it must be assessed whether it would have been reasonable in all the circumstances for the person to be redeployed within:

[66] The Applicant submitted that due to his workplace injury he was unable to apply for the redeployment positions which were available to other Thiess employees.

[67] The Applicant submitted that whilst the Applicant was on WorkCover, he was advised in September 2015 by his Orthopaedic Surgeon, Dr Andrew Ryan, that he was able to participate in a return to work program on restricted duties. The Applicant stated that Work Cover contacted the HR department at Thiess, and was advised by Ms Devina Cook (Thiess HR) that Thiess had no suitable duties that the Applicant could undertake. The Applicant stated that he was found alternative duties through WorkCover, at a host employer.

[68] The Applicant submitted that the obligation of the Respondent to consider redeployment opportunities extended to a consideration of positions occupied by labour hire employees at the Mine, as well as positions at the associated entities of the Respondent. The Respondent indicated that it provided a list of the available jobs within Thiess, however the Applicant did not engage in any discussion regarding redeployment with the Respondent.

s.389(2) –Respondent’s submissions on redeployment

[69] The Respondent agreed it had a responsibility to make reasonable efforts to redeploy the Applicant within the Mine or its associated entities.

[70] The Respondent submitted that it made all reasonable attempts to redeploy displaced employees within the business, and within associated entities, prior to enacting involuntary redundancies.

[71] During the telephone call Mr McCowan had with the Applicant, Mr McCowan submitted that he informed the Applicant that the Respondent had already conducted a review of vacancies within it, as well as its associated entities, but was unable to identify any suitable roles for the Applicant at that time. Mr McCowan stated that at no time during the telephone call did the Applicant query the availability of alternatives roles within Thiess or redeployment opportunities. Mr McCowan stated that during the telephone call he confirmed with the Applicant his email address, and informed the Applicant that he would be provided with the abovementioned information on 12 October 2015. 14 Mr McCowan submitted that he was copied into an email sent to the Applicant by Ms Linlee Broad, Senior HR Advisor for the Respondent, containing the referred to information.15 Mr McCowan provided a copy of the email sent to the Applicant on 12 October 2015, which attached an Expression of Interest Form Redeployment, list of current vacancies available within Theiss, a Long Service Leave form and Centrelink information.

[72] Mr McCowan submitted that during his telephone call with the Applicant, the Applicant advised him that the termination date of 5 November 2015 was ‘not an issue’ for him, as he was ‘still covered for time off work by a doctor’s certificate up to, and including 20 November 2015’. 16

[73] Mr McCowan submitted that on 15 October 2015, he received a telephone call from the Applicant and at no time during the call, did the Applicant make enquiries about the availability of alternative roles, or redeployment positions with the Respondent. Mr McCowan provided a copy of his contemporaneous handwritten notes taken during his telephone call with the Applicant.

[74] Mr McCowan submitted that the Applicant did not at any time return a completed expression of interest for redeployment form, nor did he identify to the Respondent any particular vacancy that he would like to have been considered for. 17

Should the Applicant have been redeployed to undertake work being performed by labour hire personnel at the Mine?

[75] The Applicant submitted that some of the redundant employees could have been kept on to fill the temporary positions that the labour hire personnel were engaged to perform.

[76] The Respondent did not dispute the skill set of the Applicant or that he could have effectively worked in the role suggested. The Respondent explained that the labour hire roles were only engaged on a temporary basis to be responsive to client needs, and were used on a daily hire basis. The Respondent’s evidence was that the utilisation of the labour hire contractors was justified by the Respondent on operational grounds.

[77] Mr McCowan submitted that he was aware that the Respondent retained a small labour hire component in the workforce of the Mine 18. Mr McCowan stated that it was his understanding that the labour hire personnel who remained at the Mine were allocated only to perform work under a particular short-term ‘ROM’ contract, and as intermittent crew relief. Mr McCowan further stated that it was his understanding that ROM contract is a distinct parcel of work that is a month by month proposition for the Respondent (at WCPL’s) discretion), and it is for this reason that the Respondent deemed the Applicant to be an unreasonable prospect for redeployment19.

[78] Mr McCowan submitted that he was aware that a labour hire strategy of the Respondent was to maintain a labour hire presence to provide a low cost, high flexibility labour option that would allow the Respondent to move more quickly, and respond to changes in operational requirements. 20

[79] The Respondent denied the Applicant’s contention that it would have been reasonable to redeploy the Applicant into positions held by labour hire personnel for the following reasons:

[80] The Respondent emphasised the judgement of the Full Bench in Stickley & Ors v Kestrel Coal Pty Ltd 21, which upheld a decision that the Respondent in that case did not have ‘an obligation to redeploy the [employees] into a … position filled [Contractor] employees’. The Full Bench affirmed the findings at first instance that ‘relevant considerations’ included ‘the timing of the project’, ‘ the short-term engagement of the project’ and ‘the [Employer’s] prerogative to structure [it’s] workforce on the optimum, operation and flexible basis for [it’s] business’.

[81] The Respondent also raised the decision of Brown and Ors v Clermont Coal Operations Pty Ltd 22 in which the Applicants submitted that they should have been redeployed to positions that were occupied by labour hire personnel. Vice President Catanzariti held at [40] that ‘…the Commission is not charged with the task of criticising the legitimate business models of companies in exercising its discretion pursuant to s. 389(2) of the Act’. Vice President Catanzariti continued at [41] that ‘Requiring the Respondent to alter its business model in circumstances where there was a legitimate operational strategy in place requiring a certain ratio of labour hire is not appropriate and cannot be characterised as a reasonable requirement’.

Did the Respondent make reasonable efforts to redeploy the Applicant into an associated entity of Thiess Pty Ltd?

[82] The Respondent submitted that the number of roles available with the Respondent were limited, due to declining production positions at various other mining operations throughout Australia and the fact that prior redundancy programs at other sites of the Respondent’s operations, had largely exhausted available options.

[83] As set out, the Respondent submitted that actions taken included identifying and reviewing all vacancies within the various entities, providing details of vacancies to employees (verbally and on noticeboards on a weekly basis), asking employees to nominate any roles for which they wished to be considered, and arranging direct consideration by the relevant entity for any employees who expressed an interest in a particular role.

[84] In his witness statement for the Respondent, Mr McCowan referred to the telephone conversation of 9 October 2015, in which he advised the Applicant that he would be sent, among other documents, a Redeployment expression of interest form and a list of current vacancies. This was a comprehensive list, as Mr McCowan recalls that after a review of vacancies within the Respondent and its associated entities, they had been unable to identify any suitable roles at that time.

[85] Mr McCowan further stated that in a subsequent telephone conversation on 15 October 2015, the Applicant did not query the availability of alternate roles nor make any reference to redeployment.

[86] The evidence of Mr McCowan for the Respondent was that the Applicant did not at any time return a completed expression of interest for redeployment form, nor did he identify any particular vacancy for which he wished to be considered.

Relevant case authority on redeployment

[87] In examining the redeployment process in Ulan Coal Mines Limited v Honeysett and others (Ulan No. 2) 23 the Full Bench said:

[88] Further, the Full Bench said in assessing whether redeployment was possible:

[89] The Full Bench decision expressed caution in relation to requiring that a displaced employee be engaged in a competitive selection exercise 26. Redeployment will not usually involve a competitive selection process. Similar considerations for redeployment should be given to associated entities of the Respondent, as per Ulan No. 2 above, and overall managerial control is a relevant consideration.

[90] In Technical and Further Education Commission T/A TAFE NSW v Pykett (“Pykett”27, the Full Bench considered the proper construction of s.389(2) which, it held, involved a consideration of whether there was work the employee could reasonably have been engaged to perform with their employer, “whether or not it constituted an existing identified position or job28. The Full Bench observed that an employer who sought to rely on the genuine redundancy objection would normally be expected to adduce evidence that would include “canvassing the steps taken by the employer to identify other work which could be performed by the dismissed employee29.

[91] As a result of the decisions in Ulan No. 2 and Pykett, a two step process could be identified. First, a job, position or other work must be identified, and second, redeployment to this job, position or other work must be reasonable in all of the circumstances.

[92] The decision in Ulan No. 2 provides guidance as to the matters which will determine whether redeployment would be reasonable, and these included (not exclusively); the nature of any available position, the qualifications required to perform the job, the employee's skills, qualifications and experience, the location of the job in relation to the employee’s residence and the remuneration which is offered. Reasonableness of redeployment may involve a consideration of what training would be required in order to perform the job.

[93] The requirement to redeploy is framed in the past tense and therefore, as noted in Pykett 30, attention is directed to the circumstances which existed at the time the person was dismissed. In Ulan No. 2, it was held that the question of whether redeployment would have been reasonable, is to be applied, at the time of the dismissal31.

[94] In the case of Ventyx Pty Ltd v Murray 32 (“Ventyx”), prior to informing the applicant that their position had become redundant, the employer had exhausted all redeployment options for the applicant in accordance with its Redundancy Policy. At the meeting in which the employer notified the employee of their redundancy, it provided that employee with a list of vacant roles within associated entities, some in Australia and some overseas. In that case, there were roles that Ventyx Pty Ltd did not consider were reasonable for it to redeploy the employee to, and the employee was instead invited to apply for those roles if he wished to do so;

[95] In the case of Teterin and Others v Resource Pacific Pty Limited T/A Ravensworth Underground Mine  34 (“Teterin”), the Full Bench considered which party bore the evidentiary burden in relation to satisfying the Commission whether redeployment would have been reasonable in all the circumstances. The Full Bench found that the employer respondent in that case would have satisfied the evidentiary onus in any case, due to the extensive nature of the evidence it led:

[96] In the case of Roy v SNC at [33] and [40], it was held that an employer is obliged to consider the financial burden of redeployment.

[97] The decision of Ventyx 36 is authority for the proposition that there is no requirement for an employer to redeploy an employee to any vacant position in the business or an associated entity of the business.

[98] The decision of Ulan No. 2 37 is authority that firstly, the job must be suitable and that an employee should have the skills and competence required to perform the job immediately or after a reasonable period of training and regard must be had to an employee's qualifications and competencies that are known to the employer. According to the decision in Aralar38, if an employee is identified as having the skills and competence required to perform a vacant role, that employee should not be required to compete for any vacant roles, at the time the employee is being considered for redeployment.

Conclusion

s.387 – Criteria for considering harshness

[99] In considering whether it is satisfied that the Applicant’s dismissal was harsh, unjust or unreasonable, the following must be taken 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);

[100] With respect to the reason for the dismissal the Applicant submitted that at the time of redundancy he was given no information as to why he had been made redundant. The Applicant stated that he can only assume it was because of his incapacity at that time, given that he was unable to fulfil his working requirements. However, the Respondent stated the reasoning related to the restructure was provided. The Applicant was notified of the basis of the Respondent’s need to restructure, due to the change in the contract at the mine which lead to the genuine redundancies.

(b) whether the person was notified of that reason

[101] With respect to the reason for the dismissal the Applicant submitted that no reason was given to him as to why he was personally chosen for redundancy, and other employees were provided with information. However the Respondent notified the Applicant of the need and reasons for the restructure and provided him with redeployment material.

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

[102] With respect to the reason for the dismissal the Applicant submitted that he was not informed, therefore there was no opportunity to respond. The Applicant was telephoned and he was later provided with the relevant documentation. The Respondent’s evidence was that during the conversation advising the Applicant of the need to restructure, he did not seek to further discuss this, nor at a later date, when he was advised of his redundancy.

(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

[103] With respect to the reason for the dismissal the Applicant submitted that he was given no opportunity to have a meeting and no support person was available to him at the time of the telephone notification. The Respondent’s evidence confirmed that the Applicant was notified of the reasons required for the redundancies in terms of the restructure, as set out in the earlier discussion. The Applicant had also been provided with the Employee Assistance Program form, in terms of providing him with further counselling and support.

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

[104] With respect to the reason for the dismissal the Applicant submitted that he was not given any information as to why he was personally chosen for redundancy. However there is no evidence that the Applicant requested the basis for the selection.

(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

[105] With respect to the reason for the dismissal the Applicant submitted that no information was given to him, and he was unaware of the effect of the dismissal. The Respondent refuted this and provided emails communicating such. The Applicant submitted that no prior warning was given to him before the telephone call he had with Mr McCowan on 9th October 2015. The Applicant stated that other employees attended meetings and support sessions, however the Applicant stated these were not made available to the Applicant, and he received no other structured contact from Thiess. The Applicant stated that he was only offered a notification period of twenty-seven days. The process, being the redundancy, was complicated by the Applicant’s absence but the reason was provided to him. The correct notification period was provided was provided to the Applicant.

(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

[106] The Respondent has dedicated personnel and therefore the process has been examined on this basis.

(h) any other matters that the FWC considers relevant

[107] The Applicant submitted that he had hoped to remain an employee of Thiess for a further fifteen years. The Applicant stated that because of the redundancy and the possibility of not being able to work, due to his work related injuries sustained at Thiess Curragh North and he may never be able to operate machinery again. The Applicant stated that due to these factors, the redundancy has caused substantial loss of salary. The Applicant stated that he is seeking monetary compensation for the loss of his earnings and future potential earnings outside of the mining industry. The Applicant submitted that since his redundancy from the mining industry and his Work Cover situation, it will be extremely difficult if not impossible for him to regain future employment in the mining industry. The Applicant stated that this will result in a dramatic loss of his income, and a drop in any salary potential that may have been available to him. The Applicant stated that the redundancy and employment situation has weighed heavily on both his physical and mental health. These factors have been taken into account.

[108] With respect to the dismissal The Applicant submitted that consideration should be had in regard to s232B of the Workers Compensation and Rehabilitation Act 2003:

[109] The Applicant submitted that he was dismissed from his employment with Thiess seven months following his work related injury. The Applicant stated that based on his experience and skill set he is unsure as to why he was chosen for dismissal, and contended that his injury played a role in his selection. The Respondent refuted that the injury played any role in the selection for redundancy, and relied on the evidence of the restructure and the need for a significant number of associated redundancies, was required for downsizing. Mr McCowan provided evidence of the scoring for the Applicant in the selection process.

[110] Further to the aforementioned reasons, in considering the jurisdictional objection, in summary terms, firstly, with respect to s.389(1)(a) “employer no longer required the person’s job to be performed by anyone”, on the evidence and submissions, it is clear that the Applicant’s job and a number of others were not required given the context of the industry, and the contract work of the employer was not required to the same extent.

[111] Regarding s.389(1)(b) “obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy”. On the evidence the Respondent had consulted with the Applicant regarding the redundancy. No reasonable alternative redeployment roles were available to the Applicant. An expression of interest form and a positions list was provided to him. The Applicant did not return the Expression of Interest form, nor did he seek any discussions about alternative positions.
[112] With respect to s.389(2)(a), whether it was “reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise”, and whether the Applicant could have been reasonably redeployed in the Respondent’s enterprise. The Respondent demonstrated that they met their obligation to consider redeployment of the Applicant to associated entities of the Respondent under s.389(2)(b), against where it would have been reasonable in all the circumstances to do so.

[113] For the aforementioned reasons, the Applicant’s job was made redundant, and no alternative redeployment was available. In the circumstances of this matter, the restructure required the operational downsizing, relevant consultation was undertaken with the Applicant and no alternative redeployment positions were explore with the Respondent. Accordingly, it is considered that the dismissal was a genuine redundancy pursuant to s.389(1). The jurisdictional objection made pursuant to s.389 is upheld, and the application made pursuant to s394 is dismissed.

[114] The Applicant complained that he was told 3 days later than other employees that he was being made redundant. The Applicant stated he considered prior to being to being told that he was redundant, the he would not have been selected given he considered s.232B of the Workers Compensation and Rehabilitation Act 2003 prevented this. S.232B states:

[115] The Applicant did not provide any persuasive evidence that his injury formed an element in his selection for redundancy. The Applicant predominately based his view of this on that fact that earlier in September 2015 he had sought to undertake alternative return to work duties whilst on WorkCover, given his injury. The Applicant stated he did not discuss the selection process with Mr McCowan. At the time of Mr McCowan advising him of his redundancy on 15 October 2015, the Applicant conceded that he did not raise the basis for his selection for redundancy, nor did he raise redeployment options. The Applicant stated that he raised elements of rental assistance and the renewal of his certificate, as noted in the contemporaneous notes taken by Mr McCowan during the phone discussion with the Applicant. The Applicant stated that Thiess in September 2015 did not have any alternative duties and when he received the ‘Expression of Interest’ form after being informed of the redundancy, he thought the position would be the same now in regard to suitable duties.

[116] The Applicant conceded that he did not return the Expression of Interest form and he didn’t identify any of the jobs on the redeployment list, nor and he agrees that he did not express to Mr McCowan that he sought redeployment. The Applicant took issue with the retention of labour hire employees by Theiss, given that full-time employees like himself had been made redundant. Mr McCowan stated that in the 6 months prior, and at the time of the redundancies, the labour hire employee’s workforce had been reduced by 200. However the Respondent emphasised that given the nature of the changes to the Coal Market, Thiess has used a segment of labour hire employees on a daily bases to service their contracts. Mr McCowan explained that Thiess needed to be operationally responsive to the contractual directions of the client, and the labour hire contracts provided for flexibility.

[117] For the aforementioned reasons, the Applicant’s job was made redundant and no alternative redeployment was available. In the circumstances of this matter, the restructure required the operational downsizing, and the relevant considerations were undertaken with the Applicant, and the Applicant did not respond to the expression of interest form for the redeployment job list. Therefore it is considered that the dismissal was a genuine redundancy in accordance with s.385(d) of the Act. Therefore, the Applicant’s application pursuant to s.394 of the Act is dismissed.

[118] I Order accordingly.

COMMISSIONER

Appearances:

Applicant self-represented, with him Mrs Michelle Garratt.

Respondent represented by Mr Scott Donaldson, Thiess Employee Relation Manager, with him Ms Louise Broad Senior HR Manager and Mr Adrian McCowan, Employee Relations Manager.

Hearing details:

21 September 2016

 1   Crema and Others v Abigroup Contractors [2012] FWA 5322, Commissioner Cribb, at [81].

 2   Witness Statement of Adiran McCowan [14]

 3   Henry Jon Howarth; Anthony Honeysett; Aaron Oldfield; Christopher Michaelides; Graham Atkinson; Ray Murray; Craig Butler; Rodney Butler; Mark Butler; Daniel Dixon v Ulan Coal Mines Limited [2010] FWA 167 at [15] - [20]

 4   [2010] FWAFB 3488 at [31].

 5   Witness Statement of Adrian Francis McCowan, 22 January 2016 [9].

 6   Witness Statement of Adrian Francis McCowan, 22 January 2016 [11]&[12].

 7   [2012] FWAFB 5241.

 8   Witness Statement of Adrian Francis McCowan, 22 January 2016 [13]&[14].

 9   Ibid [14].

 10   Ibid [15].

 11   Ibid [16].

 12   Witness Statement of Adrian Francis McCowan, 22 January 2016 [18].

 13   Ibid [18].

 14   Ibid [18].

 15   Ibid [19].

 16   Witness Statement of Adrian Francis McCowan, 22 January 2016 [18].

 17   Ibid [21].

 18   Ibid [22].

 19   Ibid [23].

 20   Witness Statement of Adrian Francis McCowan, 22 January 2016 [24].

 21   [2015] FWCFB 4760.

 22   [2015] FWC 3862.

 23   [2010] FWAFB 7578.

 24   Ibid at [28].

 25   Ibid at [34] - [35].

 26   PN2180

 27   [2014] FWCFB 714

 28   Pykett at [18]

 29   Pykett at [37]

 30   [2014] FWCFB 714 at 24

 31   At [28]

 32   Ventyx Pty Ltd v Murray [2014] FWCFB 2143.

 33   Ventyx at [160]

 34   Bruce Teterin, Ronald Leggett, Danny Garaty, Steven O'Donnell, Phillip Gardner, Joseph Fogg, Michael Bower, Anthony Anderson, Jason James, Michael Roe, Paul Watkins, Peter Lye v Resource Pacific Pty Limited t/a Ravensworth Underground Mine [2014] FWCFB 4125

 35   At [30]

 36   Ventyx Pty Ltd v Murray [2014] FWCFB 2143 at [159]

 37   [2010] FWAFB 7578 at [28] and [30]

 38   [2014] FWC 7376 at [32]

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