DECISION

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

Jason Law
v
Amalgamated Pest Control Pty Ltd T/A Amalgamated Pest Control
(U2017/2308)

Application for an unfair dismissal remedy.

[1] Jason Law was employed by Amalgamated Pest Control as its Darwin Branch Supervisor from 8 June 2016 until 10 February 2017. He claims his dismissal was unfair, whereas Amalgamated Pest Control deny that proposition arguing instead that his dismissal was for reason of genuine redundancy.

[2] An Order was made by the Commission on 1 May 2017 amending the name of the Respondent in these proceedings to “Amalgamated Pest Control trading as Amalgamated Pest Control”. 1

[3] Section 396 of the Fair Work Act 2009 (the Act) requires the determination of four initial matters before consideration of the merits of an unfair dismissal application. It provides as follows:

“396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

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

[4] Aside from the Respondent’s jurisdictional objection, namely that the dismissal was a case of genuine redundancy, neither party put forward that any other of the considerations under s.396 required consideration by the Commission. Regarding elements (a) through (c) of s.396, I find that Mr Law’s application for unfair dismissal remedy was lodged with the Fair Work Commission within the requisite 21 day period for the making of such applications; that, owing to the length of his employment, the size of the Respondent’s enterprise and because an enterprise agreement applied to Mr Law’s employment, Mr Law was a person protected from unfair dismissal at the time of his termination; and that questions of consistency with the Small Business Fair Dismissal Code do not arise.

[5] For the reasons set out below, I find that Mr Law’s termination of employment by Amalgamated Pest Control was for reason of genuine redundancy. It follows that Mr Law has not been unfairly dismissed within the meaning of s.385 of the Act and that his application must resultantly fail.

BACKGROUND

[6] Mr Law has had a connection with entities trading under the Amalgamated Pest Control banner since November 2013 when he commenced employment for an Amalgamated Pest Control franchisee in Toowoomba, Queensland. Having worked as an employee for the Toowoomba franchisee for a year, in November 2014 he then began working for the same franchisee as an independent contractor. When he became a contractor he purchased certain equipment, in particular a twin cab utility which was fitted with various pieces of equipment. He also purchased uniforms and various tools of trade which he then used in his role as a contractor.

[7] After working for the franchisee as a contractor for some time, in early 2016 he was approached to become a direct employee of Amalgamated Pest Control and supervisor of the company’s branch in Darwin, which was a role he took up from 9 June 2016. Mr Law is a young man in his mid-twenties, with a young family, with 3 children under 7 years of age and a further due in August, who saw an opportunity to further his work if he relocated to Darwin. When he agreed to relocate he appeared conscious of moving back from contractual to employment status and that he would continue to have a need to amortise the cost of his vehicle. As a result he ensured the salary arrangements met the cost of the loan repayments. He also questioned whether rumours of an impending sale of the business might be true and was assured they were not.

[8] The role Mr Law took in Darwin was as Amalgamated Pest Control’s Branch Supervisor. At the time, the branch had a total of six people working out of Darwin, including Mr Law. The six were a mix of independent contractors and employees and included two office staff. Mr Law’s role required him to both work on the tools as well as undertake supervisory and managerial activities for the branch. Mr Law’s salary was $70,000 per year, with superannuation paid in addition to that amount. He also received payment of a vehicle allowance of $729.95 per month to cover the costs associated with of use of his utility truck.

[9] On 22 August 2016 Mr Law, along with all other Amalgamated Pest Control personnel was advised that the business had been sold to Flick Anticimex and that Flick’s acquisition of the business would be completed on 31 August 2016. The communication from the Amalgamated Pest Control CEO was in reassuring terms putting forward that it would be business as usual and that Amalgamated Pest Control would continue to operate as it had for the past 56 years;

“What this means for you

Following settlement it's business as usual and the structure and operations of the business remain unchanged. All employment entitlements, terms and conditions with Amalgamated Pest Control all remain in place, as do all Licence and Contractor agreements.

During the coming weeks & months the senior management of Flick Anticimex will be meeting with staff, licensees and other key stakeholders to consult on their future plans for the business.

In the meantime, I appreciate you may have a number of questions & concerns in relation to the acquisition. This is the first communication of many that will be released over the coming weeks. Additionally there will be an email facility for you to lodge any questions that you may have. The details of this facility will be advised shortly.

Just to repeat it is business as usual. The company Amalgamated Pest Control Pty Ltd will continue to operate as it has for the past 56 years.” 2

[10] Notwithstanding this reassurance, within a few months steps were being taken to bring the businesses together, at least in Darwin, in which both companies were represented with separate branches.

[11] Whilst Mr Law was the Amalgamated Pest Control Branch Supervisor working with five other people, Ron Van Veen was the Flick Territory Manager with responsibility for a significantly larger number of personnel. Mr Van Veen had held the position of Flick Territory Manager since December 2013 and had worked in managerial roles for over 20 years.

[12] In mid-October 2016 Mr Law was told that he would he would report to Mr Van Veen, who in turn reported to the new Flick General Manager – North, Robert Newby.

[13] In December 2016 the staff of the two branches in Darwin were brought physically together with the Amalgamated Pest Control staff relocating from Berrimah to the Flick premises at Winnellie. Mr Law estimated that after the relocation the combined branch was made up of 22 people, 3 whereas Mr Van Veen’s estimate was significantly higher at 36 people:

“As a result of the relocation of the staff from APC's Darwin Branch to Flick's Darwin Branch approximately 36 staff now worked from Flick's Darwin Branch. These staff were made up of:

(a) approximately 13 administrative staff of which 2 were from APC;

(b) approximately 7 Washroom Technicians

(c) approximately 14 Pest Control Technicians of which 3 were from APC;

(d) Jeff Futcher, Field Service Supervisor of Flick;

(e) Jason Law; and

(f) myself.” 4

[14] Having relocated to the Winnellie premises and now being responsible in his employment to Mr Van Veen, the evidence put forward by Mr Law would suggest that the relationship was the subject of some tension between the two.

[15] Mr Law is critical of Mr Van Veen as being someone who had not been directly involved in the technical aspects of pest control, and thereby being someone who was unable to work on the tools. Again on Mr Law’s evidence the two had several differences of opinion, not least of which was a decision on the part of Flick to change the arrangements regarding the reimbursements that Mr Law could claim for the costs of running his vehicle. There was also a debate between the two about what Mr Law should have done when he sought a repair to his vehicle when he found a screw in one of his tyres and a nail in another. When Mr Law became exasperated with the lack of positive response from Mr Van Veen he directly emailed the Flick CEO about the matter and sought his intervention. A further argument emerged when Mr Law questioned whether a new employee had been properly instructed in the use of personal protective equipment.

[16] Mr Law’s evidence on these matters appears to invite a finding that Mr Van Veen thought him to be a nuisance, with that becoming the reason for dismissal, in place of what the Respondent argues are its reason for termination, being its changed operational circumstances.

[17] On 24 January 2017 Mr Van Veen had a discussion with Mr Law about the future of his employment with the combined company. The evidence about that conversation indicates that Mr Van Veen communicated to Mr Law that his position was to be made redundant. Mr Law’s evidence indicates that in the course of the discussion between the two it was put forward by Mr Van Veen that in making Mr Law’s position redundant there was a possibility for him to become a contractor to the company:

“90. The very first discussion anyone had with me about the possibility of redundancy was on Tuesday the 24 January, 2017 when Mr Ron Van VEEN, the Territory Manager for Flick Anticimex Pty Ltd, verbally told me that I was to be made redundant. The meeting lasted only a few minutes and according to the best of my memory and my notes all he said was: "The position is no longer needed". He also said: "You might be able to become a Pest Technician or a contractor again but I haven't got a spot for another employer at this stage". I was in shock and didn't say anything. I was more worried about what I was going to do and what effect it would have on my family's wellbeing. From that moment forward, my whole attention was to try to delay the action to give me time to think through how me and my family were going to deal with this situation.

91. At no time was there any consideration by Mr Van VEEN of any alternative other than me being made redundant or accepting a significantly reduced income as probably a contractor.” 5

[18] Following this discussion there were several follow-up requests from Mr Van Veen. In the course of one of conversations Mr Law asked what had occurred in recent time that had led to his position being redundant. Mr Van Veen records the following conversations on the subject:

“37 On Friday the 27th of January 2017 I met with Jason Law. During the course of that meeting we had a conversation in words to the following effect:

I said "Have you had a chance to consider whether you are interested in the possibility of becoming an employed Pest Technician or a contractor?"

He said "I haven't had the opportunity to discuss this with my wife as yet."

I said: "I haven't got a spot for you as an employee at this stage however this may change in the near future as I have an issue that I had to discuss with another employee. Let's meet again on Monday."

He said: "Okay, I will discuss the options with my wife over the weekend."

38 On Monday the 30th of January 2007 I met with Jason Law and we had a

conversation in words to the following effect:

I said: "A position as either an employed Pest Technician has now become available if you decide that that is what you want."

He said: "I need to talk to my wife about this ."

I said: "Okay, let's meet again on Friday."” 6

[19] Mr Law’s evidence is that the two men had a further conversation on 3 February 2017, in which Mr Van Veen was very blunt and linked the reason for Mr Law’s dismissal to the problem that had arisen with his tyres:

“On Friday 3 February 2017, Mr Van VEEN had another meeting with me in relation to redundancy and my options. I said: "I will need to assess our options as it has put me in a very hard position financially". I said: "What has changed in the last month about me staying a Supervisor". He said: "Well, things have changed in the structure of the business and when you stirred the pot with head office about your tyre issue they didn't appreciate it. They don't like being hassled with petty issues and when I told them your situation and your role here they responded with "so he's an overpaid, glorified office assistant". I said: "You're going to Brisbane and then on holidays in Bali on leave. How about waiting till you come back to help Jeff out". He said: "Okay".” 7

[20] Mr Van Veen denies having said that Mr Law was being dismissed for reasons of him having “stirred the pot with head office”:

“39 On Friday the 3rd of February 2017 I meet with Jason Law and we had a conversation in words to the following effect:

I said: "Have you made a decision regarding the position as an employed Pest Technician or a contractor? Here's a letter of offer regarding the employed Pest Technician position."

He said: "I can't accept the position as an employed Pest Technician as it will put me in a very hard position financially. What is changed in the last month about me staying on as a Supervisor?"

I said: "Well, things have changed in the structure of the business as a result of the restructure of APC and Flick."

He said: "You're going to Brisbane and then on holidays to Bali on leave. How about I give you my answer regarding becoming a contractor when you return."

I said: "Okay."

He said: "Could you put something in writing about my position being made redundant and provide me with an estimate payout figure. Also could you let me know what the equipment costs associated with becoming a Pest Control Contractor are."

I said: "Okay. How does a finish date of 25 February 2017 in relation to your position as Branch Supervisor sound?"

He said: "That sounds fine."

During the course of that meeting I provided Jason Law with a letter of offer for the employed Pest Technician position and a sample of Flick's Independent Contractor Agreement and a copy of the Subcontractor Checklist.

40 At no point during our meeting on Friday the 3rd of February 2017 did I ever state words to Jason Law to the effect that "You stirred the pot with head office about your tyre issue and they didn't appreciated it. They don't like being hassled with any issues and when I told them your situation and your role here and they responded with "so he's an overpaid, glorified office assistant".". In fact, the tyre issue was never discussed at this meeting.” 8

[21] In the course of these conversations Mr Van Veen formed the opinion that, in the absence of an affirmative decision about the same that Mr Law did not want to work either as a contractor or technician employee and he sent an email and letter to Mr Law to that effect on 5 February 2017. The correspondence set out that Flick would be making Mr Law’s position redundant with effect from 25 February 2017: 9

• in the covering email;

“Hi Jason

Please find letter attached.

As discussed, if you decide to become a contractor for Flick we would be happy to sell you the equipment for $1,500

The equipment comprises of the slide on skid, tool boxes, tank, hose reel, pump

It excludes all other minor equipment

The independent contractor agreement is to be drawn up and signed prior to the 25th of February 2017

If you decide not to become a Contractor for Flick, the equipment is to be returned in full on your final day.

Do not hesitate to contact me to discuss further

Kind Regards

Ron Van Veen

Territory Manager – Flick Anticimex”

• in the attached correspondence;

“Dear Jason

As you are aware the Company has recently had cause to review its operations.

You will recall that the possibility of your position becoming redundant was discussed in our meeting on the 3rd of February 2017. During that meeting you were offered alternative employment as a PT5 Pest Technician. A letter of offer was given to you but was declined with your preference towards the redundancy with the option to become a Contracted Pest Technician.

As a result, we have no alternative but to make your position redundant effective from the 25th of February 2017.

Attached to this letter are the details of your Termination Pay as at the 3rd of February 2017 which will be deposited in your nominated Bank account within 7 days from the redundancy date..

I take this opportunity to thank you for your services to Flick Anticimex and wish you well in your future endeavours.

Yours sincerely

Ron Van Veen

Territory Manager

Flick Anticimex Pty Ltd” (underlining added)

[22] The underlined passage of the above, indicate Mr Van Veen’s understanding that Mr Law did not want to be a Pest Control employee.

[23] On 6 February 2017, Mr Law took issue with the proposition that he had declined the opportunity to be an employee, and said so directly to Mr Van Veen, with Mr Van Veen characterising the situation as heated.

[24] After the morning confrontation Mr Law took the opportunity to attempt to negotiate with the company about its decision sending by return email on 6 February 2017 the offer set out below, in an email sent at 3.45pm and entitled “Moving Forward”.

“Dear Ron,

Firstly Thank you for taking the time to speak with me on Friday and to formalize the conversations we have had over the past week.

I would again thank you for taking into consideration my families situation regarding our move to Darwin and the circumstances behind Amalgamated Pest Controls offer to us. It has been a very full on weekend for us going over all that was presented to us and what we would need to move forward from this point. As you know certain promises were made to us by Amalgamated Pest Control for us to move to Darwin and obviously moving forward those guarantees will be removed.

I want to take this time to let you know we are interested in having me move back to a subcontractor arrangement however we need a little more than your offer to get us to a position that I believe we can recuperate from this backwards step. So having said that I have put together the following counter offer to your offer made to me on Friday. I believe it is a fair and balanced counter offer and sees a win-win for us all.

Point 1 - Exit Remuneration one offer of $5000.00

Point 2 - Equipment on the rear of my vehicle to be gifted to me for no cost. Including all equipment (Minor & Major) as the vehicle stands at this present time.

Point 3 - A guaranteed minimum weekly wage ( sub-contractor work) equal to a minimum of $1870.00 for a period of 12 weeks.

Obviously in return I agree to take back repayments of my vehicle and all running costs (e.g. Insurances, Fuel, Maintenance) that were previously being met by Amalgamated Pest Control. I also agree that for the first 4 weeks of this new transition I will make myself available at no charge to assist administration or yourself with any matters that may arise from the movement of myself from a management role to a technician.

As stated earlier I believe this is a fair and balanced offer that meets your needs and that of my families. As you understand by taking over my car payments and running cost I will be at a financial loss, the 12 week guaranteed income will allow us to make an easier transition from Salary back to that of a subcontractor. Without this guarantee I believe we will place too much financial stress on ourselves. I also believe the 12 week period will give enough time to adapt into the new role and still give you a 4 week period of assistance without charging for my time. The $5000.00 is designed to compensate my expenses I have encored from the move to Darwin.

I am available to meet anytime to finalize this matter and I look forward to a successful transition.

Regards

Jason Law

Amalgamated Pest Control” 10

[25] When he heard nothing further from Mr Van Veen about the situation Mr Law made a further enquiry of Mr Van Veen on 9 February 2017 which pointedly asked whether the matters set out in his earlier offer could be discussed. Mr Van Veen replied on 10 February 2017 and advised that the offer had been declined and that Mr Law’s termination of employment to be treated as redundancy would stand, with the date of effect being 10 February 2017.

LEGISLATION

[26] The meaning of “genuine redundancy” is defined by the Act in s.389 in the following manner:

“389 Meaning of genuine redundancy

(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer.”

CONSIDERATION

[27] For a dismissal to be characterised as a genuine redundancy within the meaning of s.389 of the Act, the Commission is obliged to find that a person’s employer no longer required their job to be performed by anyone because of changes in the operational requirements of its enterprise; that the employer has complied with any consultation obligation in the applicable modern award or enterprise agreement; and that it would not have been reasonable in all the circumstances for the person to be redeployed either within the employer’s enterprise or that of an associated entity of the employer.

[28] The parties agree that Mr Law’s employment was covered by the Pest Control Industry Award 2010 (the Award).

[29] Clause 12 of the Award deals with redundancy and Clause 8 deals with the matter of consultation:

“12. Redundancy

12.1 Redundancy pay is provided for in the NES.

12.2 Transfer to lower paid duties

Where an employee is transferred to lower paid duties by reason of redundancy, the same period of notice must be given as the employee would have been entitled to if the employment had been terminated and the employer may, at the employer’s option, make payment instead of an amount equal to the difference between the former ordinary time rate of pay and the ordinary time rate of pay for the number of weeks of notice still owing.

12.3 Employee leaving during notice period

An employee given notice of termination in circumstances of redundancy may terminate their employment during the period of notice. The employee is entitled to receive the benefits and payments they would have received under this clause had they remained in employment until the expiry of the notice, but is not entitled to payment instead of notice.

12.4 Job search entitlement

(a) An employee given notice of termination in circumstances of redundancy must be allowed up to one day’s time off without loss of pay during each week of notice for the purpose of seeking other employment.

(b) If the employee has been allowed paid leave for more than one day during the notice period for the purpose of seeking other employment, the employee must, at the request of the employer, produce proof of attendance at an interview or they will not be entitled to payment for the time absent. For this purpose a statutory declaration is sufficient.

(c) This entitlement applies instead of clause 11.3.”

“8. Consultation

8.1 Consultation regarding major workplace change

(a) Employer to notify

(i) Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must notify the employees who may be affected by the proposed changes and their representatives, if any.

(ii) Significant effects include termination of employment; major changes in the composition, operation or size of the employer’s workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations; and the restructuring of jobs. Provided that where this award makes provision for alteration of any of these matters an alteration is deemed not to have significant effect.

(b) Employer to discuss change

(i) The employer must discuss with the employees affected and their representatives, if any, the introduction of the changes referred to in clause 8.1(a), the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees and must give prompt consideration to matters raised by the employees and/or their representatives in relation to the changes.

(ii) The discussions must commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in clause 8.1(a).

(iii) For the purposes of such discussion, the employer must provide in writing to the employees concerned and their representatives, if any, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees provided that no employer is required to disclose confidential information the disclosure of which would be contrary to the employer’s interests.

8.2 Consultation about changes to rosters or hours of work

(a) Where an employer proposes to change an employee’s regular roster or ordinary hours of work, the employer must consult with the employee or employees affected and their representatives, if any, about the proposed change.

(b) The employer must:

(i) provide to the employee or employees affected and their representatives, if any, information about the proposed change (for example, information about the nature of the change to the employee’s regular roster or ordinary hours of work and when that change is proposed to commence);

(ii) invite the employee or employees affected and their representatives, if any, to give their views about the impact of the proposed change (including any impact in relation to their family or caring responsibilities); and

(iii) give consideration to any views about the impact of the proposed change that are given by the employee or employees concerned and/or their representatives.

(c) The requirement to consult under this clause does not apply where an employee has irregular, sporadic or unpredictable working hours.

(d) These provisions are to be read in conjunction with other award provisions concerning the scheduling of work and notice requirements.”

[30] The first of the genuine redundancy criteria requires a finding that a person’s employer no longer required their job to be performed by anyone because of changes in the operational requirements of its enterprise.

[31] It is accepted in relation to this test that an employer no longer requiring a person’s job to be performed by anyone includes a circumstance in which there has been a rearrangement of an organisational structure in which the functions, duties and responsibilities of a single position have been distributed amongst other employees. An employee’s job can be found to no longer exist even though the tasks and duties they performed may continue to be performed by other employees. 11 It is accepted that the test is whether the previous job has survived restructure or downsizing, rather than being a question as to whether the duties have survived in some form.12 In parallel to this reasoning, the Federal Court has held the following about issues to be considered in relation to a “bona fide redundancy” within the meaning of taxation legislation;

“We consider that it is more accurate to say that an employee becomes redundant when his or her job (described by reference to the duties attached to it) is no longer to be performed by any employee of the employer, though this may not be the only circumstance where it could be said that the employee becomes redundant. Reallocation of duties within an organisation will often lead the employer to consider whether an employee, previously employed to perform specific functions assigned to a particular “job”, will be able to perform any available “job” existing after such reallocation. Even if the employee’s job, defined by reference to its duties, has disappeared, he or she may be able to perform some other available job to the satisfaction of the employer. In that case, no question of redundancy arises. It is only if the employer considers that there is no available job for which the employee is suited, and that he or she must therefore be dismissed, that the question of redundancy arises. If, in good faith, the employer:

• has reallocated duties;



• considers that the employee is not suitable to perform any available job, defined by reference to those reallocated duties, existing after the re-allocation; and



• for that reason, dismisses the employee,

then, for the purposes of s 27F, the employee is dismissed by reason of his or her bona fide redundancy. In the above discussion we have used the word “available” as meaning “vacant”, and the word “suitable” as meaning “within the employee’s capacity”. 13

[32] The requisite finding is available on the evidence. Amalgamated Pest Control no longer needed the Branch Supervisor position formerly held by Mr Law. The reasons for that are self-evident, with it being almost a likely consequence of the Flick Anticimex acquisition of Amalgamated. The overall staff numbers are small, even at a combined total of between 22 and 36, and it would not be unreasonable for the company to expect that just one of the two managers already in place in Darwin could be responsible for the combined operation.

[33] The reasons why the company held the views it did about its operational requirements were explained to Mr Law. Notwithstanding his view, that he had been targeted for redundancy because he had “stirred the pot with head office” and thereby had become a nuisance, the evidence does not support a finding that the Respondent’s decision making was for that reason, or included that reason.

[34] I find therefore that Amalgamated Pest Control no longer required Mr Law’s job to be performed by anyone because of changes in the operational requirements of its enterprise.

[35] The second of the “genuine redundancy” criteria involves a necessary finding that the employer has complied with any consultation obligation in the applicable modern award or enterprise agreement. In this regard, I note that the consultation clause of the Award, referred to above, requires notification to the affected employee or employees, together with an attendant obligation that there be discussions over the proposed change about measures to avert or mitigate adverse effects, and then genuine consideration of what is brought forward, if anything.

[36] The evidence shows that Mr Van Veen discussed alternatives with Mr Law, who considered those matters and took time to do so, and later put forward his own proposal for resolution of the matter. While that process did not lead to agreement, the evidence shows nonetheless that Amalgamated Pest Control complied with the consultation/discussion/consideration obligations it held under clause 8 of the Award.

[37] The third of the genuine redundancy criteria to be considered is that within s.389(2) of the Act, namely whether it would have been reasonable in all the circumstances for a person to be redeployed within the employer’s enterprise or the enterprise of an associated entity of the employer.

[38] Two matters arise in this regard. Firstly that Amalgamated Pest Control put forward two alternatives for Mr Law’s consideration – possible ongoing employment as a Pest Control Technician, and possible engagement as an independent contractor. Mr Law considered at least the independent contractor engagement alternative, but ultimately rejected both possibilities.

[39] The second matter of relevance to possible redeployment is set out in Mr Law’s witness statement, in which he is critical of the lack of consideration on Amalgamated’s part into jobs in other parts of Australia. In this regard, he states that given his financial circumstances, he would have seriously considered relocating either to Queensland, or even into New South Wales if a job had been offered in those localities. 14

[40] While that may be so, the focus of Mr Law’s 6 February 2017 correspondence to Mr Van Veen was on what could be done to make the offer of engagement as an independent contractor more worthwhile. The same correspondence fails to ask a question about employment in other States, or at all. When Mr Law followed up his proposal on 9 February, there again was no mention of relocation.

[41] The legislated test in this regard is whether it would have been reasonable in all the circumstances for Mr Law to be redeployed either within the Amalgamated Pest Control’s enterprise or that of an associated entity. There is no evidence before the Commission that there were such positions available in places other than Darwin, and of the nature referred to. I find that Amalgamated Pest Control satisfied its obligation to consider redeployment and put its offer to Mr Law, which he declined.

[42] For the reasons set out above, I am satisfied that the Amalgamated Pest Control’s dismissal of Mr Law was a genuine redundancy within the meaning of the Act. The merits of his unfair dismissal application are therefore unnecessary to consider.

[43] Accordingly, I now dismiss Mr Law’s application for unfair dismissal remedy, and an order to that effect is issued in conjunction with this decision.

COMMISSIONER

Appearances:

Mr Steve Hatton, Solicitor for the Applicant

Mr Tass Liveris, of Counsel for the Respondent

Hearing details:

2017.

Melbourne (by telephone):

1 June.

Final written submissions:

Applicant: 8 June 2017.

Respondent: 16 June 2017.

 1   PR592534.

 2   Exhibit A1, Statement of Jason Law, Appendix D.

 3   Ibid, [46].

 4   Exhibit R2, Statement of Ron Van Veen, [9].

 5   Exhibit A1.

 6   Exhibit R2.

 7   Exhibit A1, [95].

 8   Exhibit R2.

 9   Ibid, Attachment O.

 10   Ibid, Attachment P.

 11   Ulan Coal Mines v Howarth [2010] FWAFB 3488, (2010) 196 IR 32 [17].

 12   Ibid, with reference to Kekeris v A. Hartrodt Australia Pty Ltd [2010] FWA 674 [27].

 13   Dibb v Commissioner of Taxation [2004] FCAFC 126; (2004) 136 FCR 388 [43].

 14   Exhibit A1, [115].

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