The attached document replaces the document previously issued with the above code on 22 July 2020.

Corrected paragraph numbering error (two paragraphs numbered [1]). Paragraphs renumbered [1] - [39].

[2020] FWC 3832

Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - jurisdictional objection - genuine redundancy - application dismissed.

[1] Mr Eli Wayne Stever was employed by Colas New South Wales Pty Ltd (Colas) from 23 November 2010 until 23 March 2020. At the time of his dismissal Mr Stever was in the position of Site Supervisor. Colas contends that Mr Stever's dismissal was a genuine redundancy within the meaning of s 389 of the Fair Work Act 2009 (Cth) (Act). Mr Stever denies that assertion and contends that his dismissal was harsh, unjust and unreasonable.

[2] Mr Stever filed his unfair dismissal application in the Fair Work Commission (Commission) against Colas on about 24 March 2020 (Application).

[3] I decided that it was appropriate to hold a determinative conference rather than a hearing in this matter. In making that decision, I had regard to the views of the parties, together with the fact that a determinative conference would be the most effective and efficient way to resolve this matter. The determinative conference was conducted, by video conference, on 16 July 2020.

[4] Mr Stever gave evidence at the determinative conference. Colas adduced evidence from Mr Cameron Nisbett, General Manager East Coast of Colas, and Ms Merryfull, Human Resources Advisor of Colas.

[5] Section 396 of the Act sets out four matters which I am required to decide before I consider the merits of the Application.

[6] There is no dispute between the parties and I am satisfied on the evidence that:

• (a) the Application was made within the period required in s 394(2) of the Act;

• (b) Mr Stever is a person protected from unfair dismissal; and

• (c) Colas was not a "small business employer" as defined in s 23 of the Act, so the Small Business Fair Dismissal Code does not apply to Mr Stever's dismissal.

[7] In relation to the fourth initial matter which I am required to consider, there is a dispute between the parties regarding whether Mr Stever's dismissal was a genuine redundancy. Accordingly, I must decide that question before I consider the merits of the Application.

[8] Section 389 of the Act defines genuine redundancy as follows:

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

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

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

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

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

[9] "Associated entity" has the meaning given by s 50AAA of the Corporations Act 2001 (Cth).

The employer no longer required the employee's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise (s 389(1)(a))

[10] It is necessary to determine whether Colas no longer required the job of Mr Stever to be performed by anyone because of changes in the operational requirements of Colas's enterprise.[1]

[11] A job involves "a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employer's organisation, to a particular employee".[2] Where there has been a reorganisation or redistribution of duties, the question is whether the employee has "any duties left to discharge".[3] If there is no longer any function or duty to be performed by that person, their job becomes redundant.[4] For example, an employer may redistribute all the tasks done by a particular person between several other employees, resulting in the person's job no longer existing.

[12] An employee's job may still be genuinely made redundant when there are aspects of the employee's duties still being performed by other employees.[5] The test is whether the job previously performed by the employee has survived the restructure or downsizing, not whether the duties have survived in some form.[6]

[13] The reference to "changes in the operational requirements of the employer's enterprise" in s 389(1)(a) of the Act includes circumstances where an employer restructures its business to improve efficiency, productivity, sales, revenue or some other aspect of performance. The operational circumstances of a business which may give rise to a redundancy will reside in the direct knowledge of the employer. The evidentiary onus is on the employer to provide direct evidence about the nature of the employee's job and why it is no longer required to be performed as a result of changes in the operational requirements of the employer's enterprise.

[14] If a dismissal is found to be a genuine redundancy within the meaning of the Act, issues such as unfair selection procedures for redundancy are not relevant, because they go to the merits of the claim that the applicant was dismissed harshly, unjustly or unreasonably.[7]

[15] Mr Stever disputes Colas's contention that it no longer required his job to be performed by anyone because of changes in the operational requirements of Colas's enterprise. Mr Stever contends, and I accept on the evidence, that for the last six years he has held the role of Site Supervisor, but for a considerable period of time prior to his dismissal there has been no Foreman working in the crew for which Mr Colas has been responsible; instead, Mr Stever has undertaken the duties and responsibilities of a Foreman, with some assistance from Mr Foran, a Spray Truck Operator, in addition to his duties and responsibilities as Site Supervisor at the Yarrabee depot.

[16] There are a number of duties and responsibilities which are common between the role of Site Supervisor and Foreman, including supervising a crew of workers. However, a Site Supervisor has more responsibility than a Foreman, principally in areas such as ordering materials, liaising with clients, and organising work. There is a substantial pay difference between the role of Site Supervisor and that of Foreman in Colas's business. Although Mr Stever's payslip stated his classification as "foreman", I accept that his role was that of Site Supervisor, as set out in his contract and position description.

[17] Mr Stever points to the fact that seven days before he was notified of his redundancy, Colas employed a Foreman at its Yarrabee Road depot, near Port Macquarie; seven days after Mr Colas's redundancy, the new employee started his role as Foreman of the crew for which Mr Colas was responsible as Site Supervisor. Mr Stever contends that the newly appointed role of Foreman within the Yarrabee Road depot was a redundant role that was not needed. Mr Stever also contends that the redundancy of his position was not genuine because Colas employed someone else to do the same work as he was performing.

[18] Ms Jamieson, Group Human Resources Manager for Colas Australia, appeared for Colas at the determinative conference. She described the timeline of events concerning the employment of a new Foreman and the decision to make Mr Stever's position of Site Supervisor redundant as an "unfortunately closely connected sequence of events". I agree with that description. The timeline of relevant events was as follows. Unbeknown to Mr Stever, in about February 2020, Colas advertised for a Foreman as its Yarrabee Road depot. I accept Ms Merryfull's evidence that Colas did so because Mr Foran, who had been assisting Mr Stever to undertake some of the duties and responsibilities of a Foreman, informed Colas in late 2019 or early 2020 that he wanted, for personal reasons, to only undertake his role of Spray Truck Operator. In early March 2020, a successful candidate was selected for the role of Foreman. A contract of employment was sent to the successful candidate on 16 March 2020 and Colas received a signed copy of the contract of employment from the successful candidate on 18 March 2020. The new Foreman commenced employment with Colas in about late March 2020.

[19] I accept Mr Stever's criticism of Colas' decision in early 2020 to employ a new Foreman in circumstances where the NSW division of the business was not performing well and Mr Stever had been undertaking most of the duties and responsibilities of the role of Foreman in addition to his duties and responsibilities as Site Supervisor. The manager who made that decision is no longer employed by Colas.

[20] Meanwhile, in February 2020, Mr Nisbett, who was then in the position of General Manager of the Colas Qld division, together with the then General Manager of the Colas NSW division, provided the Chief Executive Officer (CEO) and Chief Financial Officer of Colas with budget packs, reconciling the financial performance of their respective divisions in the past budget cycle and providing forecasts for the next budget cycle. The NSW division of Colas had performed poorly in the previous budget cycle and its forecast for the next budget cycle was unfavourable.

[21] On 16 March 2020, Mr Nisbett attended a strategy meeting with the CEO of Colas. As a result of that meeting and the decisions taken by senior management following the meeting, three positions were made redundant with immediate effect, including the role of General Manager of the NSW division. On 19 March 2020, Mr Nisbett was promoted to the position of General Manager East Coast, in which he assumed responsibility for Colas's contracting operations throughout NSW and Qld. Mr Nisbett then reviewed the NSW operation and made a decision to restructure it so that it would more closely align with the more successful structure of the Qld division. As a result of this review, Mr Nisbett determined that there was a surplus position of Supervisor in the Yarrabee Road depot. That is, there was a Senior Supervisor and a Site Supervisor (Mr Stever's position) at the Yarrabee Road deport. Mr Nisbett decided to make the role of Site Supervisor redundant. Mr Nisbett was not involved in the decision to recruit a new Foreman for the Yarrabee Road depot in early 2020 and Colas had already entered into a binding contract with the successful candidate for the role of Foreman at the Yarrabee Road depot when Mr Nisbett became responsible for the NSW business on 19 March 2020.

[22] On 23 March 2020, Colas informed Mr Stever, in writing, of its decision to make his role redundant. Mr Stever's employment with Colas came to an end on 23 March 2020. Mr Stever was paid redundancy entitlements on the termination of his employment.

[23] In addition to the redundancy of Mr Stever's role of Site Supervisor, Colas made four other roles redundant in March and April 2020, including the role of General Manager of the NSW division.

[24] I accept the evidence adduced on behalf of Colas to the effect that its business suffered a downturn in early 2020 and it took a range of measures to attempt to reduce costs in its business. This constituted a change in the operational requirements of Colas's business. Amongst the cost reduction measures taken was the removal of five positions from Colas's structure, including Mr Stever's role of Site Supervisor. I also accept that the duties and responsibilities of Mr Stever's role of Site Supervisor were distributed between the new Foreman who commenced in about late March 2020 and Mr Andrew Meggatt, Senior Supervisor of the Yarrabee Road depot.

[25] For the reasons set out above, I am satisfied on the balance of probabilities that the reason for Mr Stever's dismissal was the redundancy of his role as Site Supervisor and that Colas no longer required Mr Stever's role of Site Supervisor to be performed by anyone because of changes in the operational requirements of Colas's enterprise.

Compliance with any consultation obligation in a modern award or enterprise agreement that applied to the employment (s 389(1)(b))

[26] For there to be a genuine redundancy within the meaning of s 389 of the Act, Colas must have complied with any obligation in a modern award or enterprise agreement to consult about the redundancy.

[27] There is no dispute between the parties and I am satisfied that Mr Stever was not covered by any award or any enterprise agreement during the relevant time. It follows that Colas was not obliged by s 389(1)(b) of the Act to consult with Mr Stever in relation to his redundancy.

Was it reasonable in all the circumstances for the person to be redeployed within the employer's enterprise or the enterprise of an associated entity of the employer (s 389(2))

[28] For the purposes of section 389(2) of the Act, the Commission must consider whether there was a job or a position or other work within the employer's enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employee. There must be an appropriate evidentiary basis for such a finding.[8] The word "redeployed" in section 389(2) of the Act should be given its ordinary and natural meaning, which is to "transfer to another job, task or function".[9]

[29] If an employer wishes to rely on the "genuine redundancy" exclusion in section 389 of the Act, then it would ordinarily be expected to adduce evidence, on the question of redeployment, as to whether there was a job or a position or other work within the employer's enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employee. Such evidence would usually include the steps taken by the employer to identify other jobs, positions or work which could be performed by the dismissed employee.[10]

[30] Whether it would have been reasonable in all the circumstances for the person to be redeployed, directs attention to the circumstances which pertained when the person was dismissed.[11] However, the circumstances leading up to the time the employee was dismissed may, in particular cases (such as where there has been a redeployment period for an employee prior to their dismissal), be relevant to a determination of whether it would have been reasonable in all the circumstances for the employee to have been redeployed.[12]

[31] In determining whether redeployment would have been reasonable a number of matters may be relevant, including:

(a) whether there exists a job or position or other work to which the employee can be redeployed;[13]

(b) the nature of any available position;[14]

(c) qualifications required to perform the job;[15]

(d) the employee's skills, qualifications and experience. The employee should have the skills and competence required to perform the role to the required standard either immediately or within a reasonable period of retraining;[16] and

(e) the location of the job in relation to the employee's residence and the remuneration which is offered.[17]

[32] Where an employer decides that, rather than fill a vacancy by redeploying an employee into a suitable job in its own enterprise, it will advertise the vacancy and require the employee to compete with other applicants, it might subsequently be found that the resulting dismissal is not a case of genuine redundancy.[18]

[33] It is important, however, to appreciate that, because there is a requirement to assess the reasonableness of redeployment "in all the circumstances", it is not possible to establish binding or decision rules concerning the application of section 389(2) of the Act in all cases; the circumstances of each particular case must be considered.[19]

Relevant facts concerning redeployment opportunities

[34] Colas and its associated entities reviewed whether there were any potentially suitable roles for Mr Stever on the redundancy of his position, however no such roles were available.

[35] I accept that at the time the decision was taken by Colas to make Mr Stever's role of Site Supervisor redundant, Colas had already entered into a binding contract to employ a person in the role of Foreman at the Yarrabee Road depot. As a result, the role of Foreman was not available at the time of Mr Stever's redundancy. I therefore find that the role of Foreman was not a reasonable redeployment option for Mr Stever.

[36] It is unfortunate that the General Manager of the NSW division of Colas did not suspend the recruitment process for a new Foreman at the Yarrabee Road depot while consideration was given as to the steps that would be taken to reduce costs in the business. Had that happened, it would have been open to Colas to make Mr Stever's position of Site Supervisor redundant and offer him the role of Foreman. I accept Mr Stever's evidence that he would have accepted the role of Foreman even though it was at a substantially lower pay rate than his role of Site Supervisor. Notwithstanding the fact that this would have been a preferable course of action, it does not alter the fact that the role of Foreman was not available at the time Mr Stever's position was made redundant and, as a consequence, the role of Foreman was not a reasonable redeployment option for Mr Stever.

[37] Mr Stever also contends that it would have been reasonable to redeploy him into the role of a casual Tipper Driver at the Yarrabee Road depot. I do not accept that contention. The role of casual Tipper Driver at the Yarrabee Road depot was not available at the time of Mr Stever's redundancy; the role was filled by a long term casual employee.

[38] For the reasons stated, I am satisfied that it would not have been reasonable in all the circumstances for Mr Stever to be redeployed within Colas's enterprise, or an enterprise of an associated entity of Colas.

[39] Mr Stever was obviously valued as a hard working and productive employee for Colas. It is unfortunate that he has lost his job through no fault of his own, particularly in circumstances where he was even willing to accept a lower paying job to maintain his employment with Colas. However, I am satisfied that Colas's dismissal of Mr Stever was a case of genuine redundancy within the meaning of s 389 of the Act. It follows, by reason of s 385(d) of the Act, that Mr Stever was not unfairly dismissed. I therefore dismiss the Application.

Ms Jamieson, Group HR Manager for Colas Australia, appearing on behalf of Colas

[2] Jones v Department of Energy and Minerals (1995) 60 IR 304 (Jones) at 308 per Ryan J; applied in Ulan Coal Mines Limited v Howarth [2010] FWAFB 3488; (2010) 196 IR 32 (Ulan Coal 1) at [17]

[5] Dibb v Commissioner of Taxation [2004] FCAFC 126; (2004) 136 FCR 388 at 404-5

[6] Kekeris v A. Hartrodt Australia Pty Ltd [2010] FWA 674 at [27] per Hamberger SDP

[7] Johnston v Blue Circle Southern Cement Pty Ltd (2010) 202 IR 121 at [48]

[8] Technical and Further Education Commission T/A TAFE NSW v Pykett [2014] FWCFB 714; (2014) 240 IR 130 (TAFE ) at [36]

[10] Ibid at [36]-[37]; Teterin & Ors v Resource Pacific Pty Limited t/a Ravensworth Underground Mine [2014] FWCFB 4125; (2014) 244 IR 252 (Teterin) at [28]-[29]

[11] TAFE at [24] & [35]; Ulan Coal Mines Ltd v Honeysett [2010] FWAFB 7578; (2010) 199 IR 363 (Ulan Coal 2) at [28]

[12] Bhalla v Welltech Total Water Management [2014] FWC 7565 at [55]

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