Larry Crozier v G H Varley Pty Ltd [2020] FWC 5432

[2020] FWC 5432

Larry Crozier v G H Varley Pty Ltd [2020] FWC 5432 | Case summary | Zoe

[17]

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

[10] 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.

[11] 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]

[12] 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.

[13] 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]

[56]

[17] It is uncontroversial that the Agreement required Varley to consult with employees about the redundancies likely to result from the reduction in work on the MHC Project (clauses 3 and 23.1 of the Agreement). The Agreement required Varley to consult about those circumstances with the "relevant employees" (who are defined by the Agreement to be the employees who may be affected by a change referred to in clause 3.6, being a major change likely to have a "significant effect" on employees). In this case the relevant major change was the reduction in work on the MHC Project (clause 3.1(a)) with the likely significant effect being termination of employment (clause 3.6(a)). In relation to the relevant employees, the Agreement required:

(a) Varley to notify the relevant employees of the decision to introduce the major change,

(b) Varley to discuss the introduction of the change, the effect of the change, and the measures Varley was taking to avert or mitigate against the adverse effect of the change on employees,

(c) for the purposes of those discussions Varley to provide, in writing, all relevant information about the change including its nature, information about the expected effects of the change on the employees; and any other matters likely to affect the employees,

(d) Varley to invite the relevant employees to give their views about the impact of the change including any impact in relation to their family or caring responsibilities,

(e) Varley to give prompt and genuine consideration to matters raised about the change by the relevant employees,

(f) Varley to consider options to mitigate or avert the impact of redundancies including the anticipated time of increased workloads; rate of natural attrition; the potential for redeployment within or outside Varley for a short time or permanently; the ability to employees undertake work on a part time basis for a period of time; and the potential for employees to take annual or long service leave,

(g) the process to be undertaken in good faith, without prejudice, in a manner that allows for fair consideration of the matters at hand while moving to resolve the matter as quickly as practical, but does not require that consensus must be reached,

(h) the process must appropriately inform and engage employees, inviting and considering their response and requires more than a mere exchange of information, it requires that employees must be contributing to the decision-making process, and

(i) following consultation as above, Varley will make its decisions based on its known requirements.

[18] In relation to the obligation to consult, Logan J in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2016] FCA 1009 (CFMEU v BHP Coal) relevantly said at [59] to [60]:

[72]

[22] Although some content of the discussions between Varley, Mr Nickle and Mr Fogarty were contentious, it was not challenged, and I accept, that from 8 April 2020 until the redundancies were made on 7 May 2020, Varley undertook significant consultation with the AMWU through Mr Nickle and Mr Fogarty. That aspect of Varley's consultation with the union and its site delegate should be commended. I also accept that Varley gave detailed consideration, in conjunction with the AMWU, to a range of measures to mitigate or avert the need for redundancies including whether Varley could qualify for JobKeeper, whether employees could take leave, redeployment opportunities, natural attrition, part-time work, and voluntary redundancies - both on the MHC Project and site wide; but having considered those measures, Varley concluded that no measures could mitigate or avert the need for redundancies.[14] Further, I accept Mr Moy's evidence that employees, including Mr Crozier, would have been aware of and anticipating that scheduled ramp downs as part of the MHC Project would result in a reduction of available work on that project at some point in the future, particularly because Varley had displayed, and the employees would often refer to, the project schedules displayed near to their work area.

[23] In relation to the "accepted practice", Varley adduced evidence that over a period of years leading up to Mr Crozier's redundancy an "accepted practice" had developed between the AMWU and Varley whereby Varley initially consulted with the AMWU about issues such as redundancy before consulting in a more limited way with the affected employees.[15] In her witness statement, Ms Dobbie provided one specific example of the "accepted practice" in which two electricians were made redundant in a process which aligned with the "accepted practice", and attested that no issue was raised by Mr Wright, who was the notified of the redundancies. Mr Wright accepted that Varley and the AMWU usually consulted about issues such as redundancies prior to going to the workforce but rejected the assertion that consultation with the employees would or should then be limited or not in compliance with the requirements set out in the Agreement. Mr Wright also gave evidence that he had raised concerns with Ms Dobbie in relation to his perception regarding a lack of consultation at another Varley site. In response to the example provided by Ms Dobbie, Mr Wright explained that no issue was raised in relation to the redundancy of the two electricians because he was not notified until after the redundancies had been made and the employees had left site, neither employee was a member of the AMWU, and he did not see it as the union's role to intervene in the redundancy of non-union members. Mr Wright's rejection of any agreement or acceptance of Varley's "accepted practice" and his explanation as to why the AMWU conducted itself as it did in relation to the electricians made redundant by Varley was convincing. This is particularly so in light of his evidence, which I accept, that he, and the AMWU, seek to ensure meaningful consultation occurs between employers and employees by negotiating robust consultation clauses. Thus, on the evidence before me I am not persuaded by the Respondent's contention that an "accepted practice" had developed between Varley and the AMWU by which Varley would initially consult with the AMWU before consulting in a more limited way with the affected employees, although I do accept that Varley often undertook consultation in that manner.

[24] I accept Ms Dobbie's and Mr Moy's evidence that Varley's consultation with the MHC Project employees, including Mr Crozier, was comprised of the following steps:

On 6 May 2020, Mr Moy and Ms Dobbie met with a group of employees on the MHC Project (including Mr Crozier) in the presence of Mr Fogarty and orally delivered information to the relevant employees about Varley's COVID-19 related supply issues and the upcoming scheduled ramp down, its expectation that these matters would result in the loss of jobs, measures being considered in order to avert or mitigate this outcome (including voluntary redundancies), and in general terms the criteria used to select individuals for redundancy.

At the meeting on 6 May 2020, both Mr Moy and Ms Dobbie invited the employees present to approach Mr Moy, Ms Dobbie or Mr Fogarty with any questions or suggestions about the redundancies, whether they would like to take voluntary redundancy and/or whether they would like more information about what a voluntary redundancy would look like (for example, the amount of redundancy pay). Employees were not told on 6 May 2020 who had been selected for redundancy.

Mr Moy and Ms Dobbie made it clear in the 6 May 2020 meeting that Varley had decided to move quickly so any suggestions or questions should be brought to their attention promptly.

[25] I also accept Ms Dobbie's evidence that Varley chose to conduct the consultation with the relevant employees as quickly as practical "not only because we do not want to contribute to employee anxiety, but also because we do not want to introduce any risk on our safety-critical projects by having employees distracted from their work".[16] Further, I accept Ms Dobbie's evidence that, after consultation with the AMWU, Varley decided not to raise the option of employees taking leave instead of being made redundant because she formed the view that it would not be effective as the relevant employees had limited supplies of annual and long service leave.[17] And, I accept Ms Dobbie's evidence that Varley chose not to raise the possibility of employees reducing their hours of work because Varley came to the conclusion that not enough employees would take up the option to have the desired effect.[18] Finally, I accept that these considerations were discussed with the AMWU before Varley commenced their consultation with the MHC Project employees on 6 May 2020.

[26] With respect to the meeting between Varley and the employees on the MHC Project on 6 May 2020, Mr Crozier gave evidence, which I accept, that he was standing around the back of about 20 other employees during the meeting and although there was an invitation to employees to ask questions or give suggestions he did not do so because he was trying to take in and understand what he was being told. In relation to the period between the meeting in which Mr Crozier was notified of the possibility that eight employees on the MHC Project would be made redundant (about midday on 6 May 2020) and when the redundancies were made (about 4pm the next day) I accept Mr Crozier's evidence that he did not approach Mr Moy or Ms Dobbie about the redundancies because he anticipated there being further meetings, he felt secure in his position and did not think that he was going to be made redundant as he believed he was in permanent employment and that he had a good skill set which would be useful to Varley on other projects. He also gave evidence, which I accept, that in the relevant period, he completed his day's work and returned to work the next morning and worked up until when his employment was terminated. I also accept Mr Crozier's unchallenged evidence that he was not made aware that he was specifically being considered for, or had been selected for, redundancy until he was told so in the meeting at about 4pm on 7 May 2020, at which time his employment was terminated with immediate effect.

[73]

[27] For the following reasons, Varley failed to comply with its obligations in the Agreement to consult about the redundancies with Mr Crozier.

[28] First, Varley did not provide any written information to the relevant employees (as required by clause 3.4(b) of the Agreement). This is important because not only does it not comply with the explicit requirements of the Agreement, but it undermines the quality of the discussions which follow the provision of written information to employees,[19] which is why clause 3.4(b) makes it clear that the written information is "for the purposes of the discussions".

[29] Secondly, Varley's obligation to invite Mr Crozier's views about the redundancies and their impact on his family and caring responsibilities brought with it a "consequential requirement for the affording of a meaningful opportunity to that party to present those views".[20] Of course, to present his views Mr Crozier would have required sufficient time and information to form a view on those matters. In relation to the consultation conducted between Varley and the AMWU, I accept Varley's contention that those discussions could have made consultation with the relevant employees more efficient and less time consuming than may otherwise have been the case. However, those discussions could not abdicate Varley's obligation to properly consult with the relevant employees in accordance with the Agreement. The circumstances and very short period of time between Mr Crozier being invited to give his views about the redundancies on the MHC Project and his position actually being made redundant undermined any real opportunity for Mr Crozier to engage with Varley. The relevant period was about 28 hours and included finishing his work on 6 May 2020 and working a full day on 7 May 2020. As Mr Crozier put it, that was a period "which isn't long to make decisions on your life and your family". Further, Mr Crozier was not even aware of nor did he suspect that he specifically would be chosen for redundancy until the meeting in which his employment was terminated on 7 May 2020. On no view of those circumstances could it be said that Mr Crozier was given a meaningful opportunity to present his views or to contribute to the decision making process in any real way. For example, because Mr Crozier was not told until about 4pm on 7 May 2020 that he had been selected for redundancy and was to be terminated that afternoon, he did not have any real opportunity to speak to his work colleagues to see if any of them may be interested in working part time and job sharing with him. Although it may not have been possible, as Mr Dobbie believed, for enough employees to volunteer for job sharing to save all eight positions to be made redundant, it may have been possible to save Mr Crozier's job. In my view, the circumstances and period of time available did not allow for consultation to be undertaken in a manner that allowed for fair consideration of the matters at hand as required by the Agreement.

[30] Although I did not understand the Respondent to put its case in this way, I will also deal with the possibility that the evidence could establish that the "accepted practice" was a manifestation of a commonly understood meaning of the requirements of the consultation clause, and therefore Varley's compliance with the "accepted practice" meant that it complied with the Agreement. Relevantly, Gray ACJ in Shop Distributive and Allied Employees' Association v Woolworths Ltd [2006] FCA 616; (2006) 151 FCR 513 (SDA v Woolworths), 520 at [31] explained:

[77]

[33] 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.[21] 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".[22]

[34] 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.[23]

[35] 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.[24] 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.[25]

[36] 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;[26]

(b) the nature of any available position;[27]

(c) qualifications required to perform the job;[28]

(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;[29] and

(e) the location of the job in relation to the employee's residence and the remuneration which is offered.[30]

[37] 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.[31]

[38] 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.[32]

[78]

[39] The Respondent contends that no redeployment opportunities existed at the time it made Mr Crozier redundant on 7 May 2020. The Applicant submitted that he could reasonably have been redeployed to one of six positions which were advertised by Varley on 12 May 2020 or to work on the emergency vehicle projects at the Tomago site.

[40] The advertisement placed by Varley on 12 May 2020 was for six qualified tradespeople with skills including MIG welding to work on a new project. In relation to those positions, Ms Dobbie gave unchallenged evidence, which I accept, that: the new project referred to in the advertisement arose from a quote which Varley had provided to one of its rail sector clients to undertake retro-fitting and repair work on coal wagons in around 2018, during the intervening two years Varley formed the view that the potential work had "gone cold" but received an informal indication that the client was planning to proceed with the quote on 11 May 2020, the client did not formally engage Varley on that work until 25 May 2020, and it was not until 22 June 2020 and 13 July 2020 that Varley engaged each of the two additional boilermakers to undertake the work.[33] What is apparent from that evidence is that leading up to and including 7 May 2020 the positions advertised on 12 May 2020 were not positions which it would have been reasonable for Varley to redeploy Mr Crozier to in the circumstances which pertained at the time of his dismissal, because those positions did not exist and Varley was not aware that they may come into existence until at least 11 May 2020.

[41] With respect to the emergency vehicle projects, Mr Crozier gave evidence that leading hands at Varley sought his interest around the time he was made redundant in work on "new tenders" or "if they got the contract" in relation to emergency service vehicle projects. In response, Ms Dobbie gave evidence that Varley has not been awarded any new contract nor been engaged on additional projects in relation to emergency service vehicles during 2020. Mr Moy gave evidence that there was no work available for Mr Crozier on any of its Tomago-based projects including its emergency service vehicle projects at the time Mr Crozier was made redundant. Both Mr Moy and Ms Dobbie gave evidence that leading hands were not authorised to seek expressions of interests from employees regarding work on other projects, although Mr Moy accepted in cross-examination that those conversations could have occurred. I accept Mr Crozier's evidence that he had conversations with leading hands at Varley in which they sought his interest in working on potential new projects related to emergency service vehicles at the Tomago site. However, I also accept the evidence of the Respondent that no new projects or additional work on emergency service vehicles have been won by Varley during 2020 and that there was otherwise no work available for Mr Crozier on the emergency service vehicle projects at the time he was made redundant. Therefore, it could not have been reasonable in the circumstances for Varley to redeploy Mr Crozier to work on emergency service vehicle because no such work existed at the relevant time.

[42] Finally, and in light of the above findings, I accept Mr Moy's and Ms Dobbie's evidence that they took steps to seek out redeployment opportunities including investigating the availability of positions or work at Tomago and other Varley sites, and that despite taking those steps, no reasonable redeployment opportunities existed at Varley or any associated entity at the time Mr Crozier was made redundant.

[89]

[54] There were sound, defensible and well-founded reasons for Mr Crozier's dismissal, namely Varley no longer required his job to be performed by anyone because of changes to the operational requirements of Varley's enterprise. Further, as I have concluded above, there were no reasonable redeployment opportunities available for Mr Crozier. These matters weigh against a conclusion that the dismissal was harsh, unjust or unreasonable.[42] Varley's material failure to comply with its consultation obligations under the Agreement is also a relevant matter which should be considered pursuant to s 387(h) of the Act.[43] However, a failure to consult does not necessarily mean a dismissal was harsh, unjust or unreasonable.[44] The weight to be given to a failure to consult depends primarily on the degree to which, if any, the absence of proper consultation led to any unfairness in practice.[45]

[55] My view is that a proper consultation period which complied with the requirements of the Agreement would have lasted a further week after 7 May 2020. Although one week is a relatively short time amount of time, I am persuaded that it is the amount of time which would have been required because of the consultation already undertaken between the AMWU and Varley and Varley's thorough consideration of ways to mitigate or avert the redundancies conducted prior to engaging with the relevant employees.

[56] The Applicant contended that even if there were no redeployment opportunities available at the time he was made redundant, had proper consultation taken place and continued for at least one week, he would have been redeployed to one of the positions advertised by Varley on 12 May 2020. The Applicant submits that as there were ultimately two boilermaker positions created and there were two boilermakers made redundant on the MHC Project both of the boilermakers made redundant could have been tested for the positions and, if they were suitably skilled could have been asked to take leave or perform other work until the positions commenced.[46] He also says that because of his qualifications and experience it is likely he would have passed the welding test that would have been required, been offered the position, and on the balance of probabilities he would still be employed by Varley. Varley argued that the two metal tradesperson roles ultimately created at Varley's Carrington site did not become true vacancies until at least late June 2020 and an extended consultation period would not have continued the Applicant's employment to that date such that he might have been redeployed into one of those roles.

[57] I am not satisfied, on the balance of probabilities, that had Varley conducted proper consultation with Mr Crozier that he would have been employed in one of the positions advertised by Varley on 12 May 2020. I accept that it is more likely than not that placing Mr Crozier into one of the six positions advertised on 12 May 2020 would have been considered by Varley had he still been employed at that time. Ms Dobbie gave evidence that she was aware of those positions by that date and was intimately involved in Mr Crozier's dismissal and considering options to avoid or mitigate the redundancies. I also accept Mr Crozier's evidence, which was not contested, that he had the necessary skills to at least apply for the positions. However, I am not satisfied, on the balance of probabilities, that Varley would have offered Mr Crozier one of the positions prior to him being made redundant for the following reasons. As Ms Farrar submitted, one cannot determine the likelihood of Mr Crozier being offered one of the advertised positions by reference to the events which actually transpired. The correct approach is to consider the situation and state of knowledge in the hypothetical seven day period (from 8 to 14 May 2020) during which Mr Crozier would have remained in employment. As at 12 May 2020 the positions did not actually exist and there was no certainty that they would be required in the future, or if so, when they would be required. The job advertisement for the positions stated that "the project is currently scheduled to start in approximately 4 weeks". However, as at 25 May 2020 Varley had not been engaged by their client to undertake the project. It was not until the client engaged Varley in about June 2020 to undertake the project that Varley could and did make a decision about its additional labour needs and consequently employed two additional boilermakers. They commenced employment on 22 June 2020 and 13 July 2020 respectively. Having regard to the state of knowledge in the period from 8 to 14 May 2020, Varley was not in a position to offer Mr Crozier an alternative position because it did not have one available. The best it could have done would have been to say that a position for which Mr Crozier may have been suitable, subject to his welding and other skills meeting the required standard, may become available at some unknown time in the future. Mr Crozier only had about 28 hours of paid leave available at that time. It is possible that Mr Crozier could have sought unpaid leave for an unknown period of time to see if the project would proceed, but the prospect of such leave being sought and granted does not seem very high. In all the circumstances, I find on the balance of probabilities that Mr Crozier would not have remained in employment after 14 May 2020 even if he had been employed and consulted with in the period from 8 to 14 May 2020.

[58] Like the situation in cases such as Maswan (at [39]) and Smith v Alice Care Care Centre Pty[47] (at [53]), I am satisfied in the particular circumstances of this case that if consultation in accordance with the requirements of the Agreement had occurred, "it would have made no difference to the ultimate outcome".[48] Although I have concluded no different outcome would have resulted had proper consultation been undertaken, Varley's abject failure to properly consult with Mr Crozier (as detailed above at paragraphs [19] to [29]) gives weight to his argument that his dismissal was unreasonable. Further, although I am not satisfied that Mr Crozier would have been offered one of the positions advertised by Varley on 12 May 2020, his loss of the opportunity to be considered for placement into one of those positions while still employed by Varley gives weight to his argument that his dismissal was harsh.

[59] Mr Crozier argued that Varley's decision to terminate his employment was unreasonable on the basis that he, as a boilermaker, was selected for redundancy when another boilermaker had expressed interest in accepting a voluntary redundancy but was rejected by Varley and that an employee described by Mr Crozier as a "contractor" was retained when he was dismissed. Varley submitted that there were sound and defensible reasons for acting as it did. I accept the evidence of Mr Moy that the boilermaker who Mr Crozier says volunteered for redundancy was retained by Varley because of his extensive skillset across the entire MHC Project as opposed to Mr Crozier's more limited skillset. That is a reasonable basis to select Mr Crozier over the other employee. Further, I accept Ms Dobbie's evidence that the "contractor" was not a "contractor" but was a fixed term employee engaged on the MHC Project whose contract expired sometime in June 2020. My view is that there is no apparent unreasonableness in selecting Mr Crozier over an employee on a fixed term contract where that fixed term contract was to expire approximately a month in the future, but had yet to do so.

[60] Mr Crozier also submitted that his selection for redundancy was unfair because he was unaware of the underlying selection criteria used to select him for redundancy and therefore he had no opportunity to put forward a case as to why he should not be selected. The Respondent submitted that little weight should be given to Mr Crozier's contention that the selection process was unfair because the Applicant's case did not initially proceed on that basis and therefore it was unsurprising that the Respondent filed little material on that point. Further, the Respondent submitted that the evidence of Mr Moy regarding the selection criteria used in deciding which employees to make redundant established that Mr Crozier's selection was reasonable and fair. I am satisfied on the evidence that Mr Crozier's selection for redundancy was not unfair. Mr Moy gave unchallenged evidence, which I accept, that the selection process used by Varley involved assessing the skills required by Varley and the employee's ranking as compared to other employees. He also gave evidence, which I accept, that the rankings relied upon were compiled by Varley as part of a yearly review and were based on, among other things, performance, attendance, willingness to learn, skills and quality of work as demonstrated over the last 12 months. Mr Crozier was ranked at or near the bottom of the list of employees. On the evidence before me, I am satisfied that Varley had a reasonable basis for selecting the employees it chose to make redundant. Hence, Mr Crozier's inability to challenge, or ask questions about, the basis upon which he was selected for redundancy supports his argument that Varley failed to consult with him in accordance with its obligations under the Agreement, but it does not otherwise persuade me that his dismissal was harsh, unjust or unreasonable.

[61] Finally, Mr Crozier submitted he has had little success in finding new employment and is unlikely to find work given his age (58) and the current job market. Varley submitted the fact that Mr Crozier was aware of but did not apply for the positions advertised on 12 May 2020 should weigh against a conclusion that his inability to find new employment makes his dismissal harsh. In relation to this issue, Mr Crozier gave evidence that he did not apply for the 12 May positions because at the time he saw the advertisement he felt rejected and unwanted by Varley and did not think he would be considered for the positions. He also gave evidence, which I accept, that had he retained his employment with Varley he would have applied for one of the positions advertised in May; in his words "a job is a job". I am not persuaded by Varley's submission. Mr Crozier's decision to not apply for one of the advertised positions was reasonable in the context of his perception that Varley had rejected and did not want him. Mr Crozier's lack of success in finding new employment supports his contention that his dismissal was harsh, but it must be weighed against the sound and well-founded reason for his dismissal and all other relevant considerations.

[95]

[65] I accept Ms Dobbie's unchallenged evidence that this advertisement is not in relation to any existing position. Ms Dobbie explained that the advertisement is in place to be used by individuals in the event that they are recruited directly by Varley for positions that have not been advertised. The link to apply is used to provide the individual a link into Varley's job portal so that they can submit the relevant documents. I am satisfied that the "Quick Hire" advertisement does not evidence any currently existing position into which Mr Crozier could be employed. Further, Mr Crozier's position is redundant, and I accept Ms Dobbie's and Mr Moy's evidence that there is currently no job at Varley for which Mr Crozier could be employed. I am satisfied that it would be inappropriate to reinstate Mr Crozier in all the circumstances.

[66] Section 390(3)(b) of the Act provides the Commission may only issue an order for compensation if it is appropriate in all the circumstances. A compensation remedy is designed to compensate an unfairly dismissed employee in lieu of reinstatement for losses reasonably attributable to the unfair dismissal within the bounds of the statutory cap on compensation that is to be applied.[49]

[67] Having regard to all the circumstances of the case, including the fact that Mr Crozier has suffered financial loss as a result of his unfair dismissal, I consider that an order for payment of compensation to him is appropriate.

[68] It is necessary therefore for me to assess the amount of compensation that should be ordered to be paid to Mr Crozier. In assessing compensation, I am required by s 392(2) of the Act to take into account all the circumstances of the case including the specific matters identified in paragraphs (a) to (g) of this subsection.

[69] I will use the established methodology for assessing compensation in unfair dismissal cases which was set out in Sprigg v Paul Licensed Festival Supermarket[50] and applied and elaborated upon in the context of the current Act by Full Benches of the Commission in a number of cases.[51] The approach to calculating compensation in accordance with these authorities is as follows:

At a glance

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Decision date

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Judgment (154 paragraphs)

Larry Crozier v G H Varley Pty Ltd [2020] FWC 5432 (12 October 2020)

Parties

Legislation Cited (1)

Cases Cited (13)