Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

[1] Mr Jeremy Rankin (the Applicant) applies under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of his dismissal by Pileworx Pty Ltd (the Respondent). The Respondent is part of group of companies in the construction industry and specialises in foundation and engineering work. The Applicant was employed by the Respondent from 4 April 2018 as a Site Supervisor/Drill Rig Operator and states that prior to this he worked for an associated entity, Ausipile Admin Pty Ltd for approximately four years. On 7 May 2020, the Applicant was notified that his employment had been terminated due to a downturn in work and that the termination would take effect on 21 May 2020.

[2] The Applicant contends that his dismissal was unfair on the basis that the Respondent used the COVID-19 Pandemic as an excuse to dismiss him and that the real reason for his dismissal was personal dislike on the part of certain managers and because the Applicant raised issues about following correct procedures, industrial laws and awards in the workplace. The Applicant also said that his dismissal was unfair because other employees with less skills and experience were retained in employment while he was pushed out.

[3] The Respondent raised a jurisdictional objection to the application asserting that the Applicant's dismissal was a case of genuine redundancy. The Respondent also contends that the Applicant rejected an offer to participate in the JobKeeper program which was made to him prior to his dismissal.

[4] I decided that it was appropriate to hold a hearing in this matter. In making that decision, I had regard to the views of the parties, together with the fact that a hearing would be the most effective and efficient way to resolve this matter. Directions were issued requiring the parties to file outlines of submissions and statements of evidence from witnesses they intended to rely on at hearing. The hearing was conducted, in person, on 8 September 2020.

[5] The Applicant gave evidence in support of his application at the hearing.[1] Evidence for the Respondent was given by:

• Michael James Gordon - Administration Manager;[2]

• Matt Cawse - Managing Director;[3]

• Matthew Godden - Production Manager.[4]

[6] Section 396 of the Act sets out four matters which I am required to decide before I consider the merits of the Application. There is no dispute between the parties and I am satisfied on the evidence that:

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

2. the Applicant is a person protected from unfair dismissal; and

3. Notwithstanding a statement in its Form F3 Response to the application that it had less than 15 employees, the Respondent is not a small business employer on the basis that it has several related entities.

[7] The fourth matter I am required to consider is whether the dismissal was a case of genuine redundancy. The Respondent contends that it was such a case. If I find that the dismissal was a case of genuine redundancy, then I must dismiss the application for an unfair dismissal remedy. If I find that the Applicant's dismissal was not a case of genuine redundancy, then I must consider the merits of the application and determine whether the Applicant was unfairly dismissed and if so an appropriate remedy for unfair dismissal. I first address the relevant facts.

[8] Mr Cawse's evidence, which I generally accept, is that in March 2020, as a result of the Covid-19 Pandemic, the Respondent's business suffered a decrease in the number of tenders being received. However, as there were still a number of large jobs in progress, there was enough work to keep all employees working at that time. By the end of March and early April 2020, circumstances changed and Mr Cawse found it significantly more difficult to find new work. He had no new jobs starting in May, and only had the current jobs to complete. In support of this evidence Mr Cawse tendered two notifications of job suspension issued by customers.

[9] In relation to employee numbers, Mr Cawse said that as at 1 April 2020, the Respondent employed 15 site workers and 1 site supervisor/drill rig operator. An associated entity, Ausipile Admin Pty Ltd, employed 3 boiler makers, 3 diesel fitters, 2 labourers, and 4 site supervisors/drill rig operators. In April 2020, as a result of the downturn in work, Mr Cawse terminated the employment of 9 employees by making their positions redundant, including 2 boilermakers, 2 fitters, 3 labourers, 1 engineer and 1 project manager. In May 2020, Mr Cawse conducted a further review of the Respondent's operations in light of the lack of new jobs continuing in the foreseeable future and determined that further redundancies were required to ensure the Respondent's financial viability.

[10] At the beginning of May, Mr Cawse states that he became aware of the JobKeeper scheme being introduced by the Commonwealth Government. The Respondent's accountant reviewed the Respondent's eligibility, and Mr Cawse was advised that the Respondent (Pileworx Pty Ltd) qualified but Ausipile Admin Pty Ltd did not. Mr Cawse said that the Respondent's gross turnover has fallen 60% from March to the end of June 2020. Further, as at 30 July 2020, the Respondent does not have any jobs scheduled to start in August 2020, with only a small residential construction project (gross value of $96,000) scheduled to start in mid-September. There are no other jobs contracted to start.

[11] Mr Cawse said that on 6 May, the Applicant completed the job he had been working on. As Mr Cawse did not have another job for the Applicant to go to for the foreseeable future, he decided on 7 May 2020 to make the Applicant's position redundant. Mr Cawse directed the Administration Manager, Mr Michael Gordon, to notify the Applicant of this decision, and also to offer the Applicant the option of going on JobKeeper payments.

[12] In his oral evidence Mr Cawse confirmed that as at the hearing date, the Respondent had 28 employees, all of whom were being paid under the Jobkeeper scheme. He noted that a lot of these employees had used their annual leave 'to top up the jobkeeper'.[5] Mr Cawse also said in his oral evidence was there was one supervisor employed in the same field as the Applicant, and three other supervisors still employed.[6]

[13] Under cross-examination Mr Cawse said that remaining employees did not receive JobKeeper payments until June. Mr Cawse also agreed that no-one who was employed in the same capacity as the Applicant is currently working and they are all receiving JobKeeper payments.[7] Further, Mr Cawse said that if the Applicant had signed the Jobkeeper form, he would still be employed and agreed that the Applicant is a hard worker.[8]

[14] Mr Gordon's evidence is that on 9 April 2020, he sent an email to all employees regarding the effects of Covid-19 on the Respondent and its financial viability. That email was tendered by Mr Gordon. It does not specifically refer to the possibility of redundancies and states that COVID-19 has resulted in cancellations and withdrawals of tender submissions and a significant reduction in tender requests and that the Company does not have many opportunities past April 2020. The email goes on to state that its purpose is to keep employees informed so that they can review their own personal and family situation. Mr Gordon said that as a result of the 9 April email, all employees, including the Applicant, should have been aware of the downturn in work and that further redundancies were likely.

[15] Mr Gordon said that in April 2020, the roles of 10 employees were made redundant and their employment terminated. On 6 May 2020, Mr Gordon sent an email to the Applicant seeking that the Applicant sign the ATO JobKeeper Employee Nomination Form, but no response was received. The email tendered by Mr Gordon was sent at 3.33 pm to a number of addressees including the Applicant and was in the following terms:

We are trying to qualify for JobKeeper. Attached is a document that I need all PileWorx employees to sign. Jeremy yes, Tui, Brendon Natty, Will & Pete - no. But if you can give this doc to your guys (PileWorx) to fill in and sign and return to me ASAP it will help enormously."

[16] Mr Gordon said that on the morning of 7 May 2020, Mr Cawse made the decision that the Applicant's role and two labourer's roles had become redundant and Mr Gordon prepared the necessary notices of termination for the three employees. On the afternoon of 7 May 2020, Mr Gordon asked Mr Michael Inwood, a boilermaker, to inform the Applicant that he should see Mr Gordon before he left work. Mr Gordon intended to raise the matters of termination and reiterate the proposal that the Applicant accept JobKeeper payments.

[17] Around 2:30pm, Mr Gordon was advised the Applicant had driven off in his vehicle shortly after being given the message, and that he "seemed to have left work in a hurry as he left his site shed that he was using wide open and tools left out". Mr Gordon said that it was confirmed via security camera footage that the Applicant had left abruptly at 2:22pm. Mr Gordon believed the Applicant was avoiding him. Mr Gordon then sent the Applicant an email with letter titled "Termination of your employment by reason of redundancy". The letter invited the Applicant to contact Mr Rankin if he had any questions and required the Applicant to work out his two week notice period. The letter did not provide an option for the Applicant to be stood down and receive JobKeeper payments.

[18] Around 3:30pm, the Yard Supervisor, Mr Damon Cooper, contacted Mr Gordon to advise that the Applicant did not want to accept the email sent to him. Mr Cooper asked Mr Gordon to put a copy of the Applicant's Termination letter on his desk and said he would deliver the letter personally. Mr Gordon said: "[i]t was obvious from the phone call that the Applicant had contacted Damon regarding his Termination Notice and had received and opened my email". At the suggestion of Mr Cooper, Mr Gordon decided that the Applicant would not be required to work out his two week notice period on the basis that the Applicant: "would likely be more trouble than he was worth". Mr Gordon's evidence is that all employees had been briefed regularly during this period, were aware of the downturn in work and the number of redundancies that had been made by the Respondent and were expecting more to eventuate. Mr Gordon believed that in leaving the workplace abruptly, the Applicant was avoiding any consultation occurring.

[19] While Mr Cooper made contact with the Applicant, seeking return of a number of the Respondent's keys, Mr Gordon did not receive any contact from the Applicant from Friday 8 May to Tuesday 12 May 2020, regarding his notice or the Jobkeeper scheme. Mr Gordon emailed the Applicant on 13 May 2020, regarding that day's pay run. The Applicant replied seeking his separation certificate. Various correspondence was exchanged, including an email sent by the Applicant on 18 May where, according to Mr Gordon, the Applicant "clearly indicates he was not interested in participating in the Jobkeeper scheme". That email, tendered by Mr Gordon raises issues with the Applicant's pay slips and the manner in which his accrued entitlements have been paid, requests payment of award entitlements in relation to redundancy and queries why JobKeeper adjustments for the ATO have been put on the Applicant's pay slip in circumstances where he did not apply for JobKeeper.[9]

[20] On the matter of the Applicant not contacting Mr Gordon or the Managing Director to discuss the redundancy or JobKeeper options, Mr Gordon stated:

"i) All other employees signed the ATO Jobkeeper Employee Nomination Form with little to no further encouragement than the Applicant received. The Applicant was the only person who did not sign the document.

ii) About 2 weeks earlier, before Jobkeeper was available, an employee was found redundant and his employment was terminated. However, around the same time as the Applicant refused the Jobkeeper, the ex-employee contacted me and asked to be put on the Jobkeeper scheme and was subsequently put on it.

iii) During the Directions Hearing for the matter on 17 July 2020 the Applicant stated that he felt uncomfortable talking to me due to prior issues he had with me. However, prior to his termination the Applicant seemed to have no problem contacting me for any pay discrepancies or queries and would routinely send his daily timesheets to me."

[21] As to the Applicant's claim that he was unfairly dismissed, Mr Gordon's evidence is that the Applicant could have been dismissed without notice on a number of occasions but was not, and tendered written warnings received by the Applicant on 24 September and 12 December 2018. Mr Gordon said that despite these occasions, the Applicant's employment was allowed to continue, until his position became redundant and his employment was therefore terminated. Mr Gordon also said that had the Applicant's employment not been terminated, he would have been stood down and placed on JobKeeper payments (after exhausting his paid leave), in line with the approach taken for all other employees. The Applicant would have received no further funds than what he was already paid. In his oral evidence Mr Gordon said that the reference to JobKeeper had been included on the Applicant's pay slip in anticipation that he would sign the JobKeeper nomination form, but had been removed when this did not occur and no claim had been made by the Respondent for JobKeeper payments in relation to the Applicant.

[22] Under cross-examination, Mr Gordon maintained that the Applicant finished work early on 7 May and that the usual finish time was 3.30 pm with a 3.00 pm finish time by prior agreement if the Applicant had started work early. Mr Gordon also maintained that the Applicant could have easily walked another 20 metres before leaving to have a discussion with Mr Gordon as he had been requested to do or at least informed Mr Gordon that he needed to leave early and could not have a discussion on that date. In this regard, Mr Gordon said that he had the JobKeeper document ready for the Applicant to sign if that was what he wanted to do.

[23] In an exchange with me during his evidence, Mr Gordon said that he did not give the Applicant another chance to sign the JobKeeper nomination form because his understanding was the Fair Work Act requires that as soon as a decision is made in relation to redundancy, the employee concerned must be advised.[10] Later in his evidence, Mr Gordon acknowledged that, "in retrospect", he should have said he wanted to speak with the Applicant about JobKeeper or redundancy, and to contact him urgently but also stated that the Applicant had not contacted him after the termination of his employment to ask whether JobKeeper was still available.[11]

[24] Mr Cooper said in his witness statement that the Applicant would normally finish work at 3pm. Mr Cooper confirmed that the Applicant telephoned him at 3.30 pm on 7 May and told him that he had received the email attaching the termination letter. Mr Cooper said that the Applicant told him that he did not want to receive his termination notice from Mr Gordon and wanted Mr Cooper to deliver it personally. Mr Cooper confirmed that he obtained a hard copy of the termination letter from Mr Gordon and delivered it to the Applicant at his home, on 10 May 2020. Mr Cooper also confirmed that he told Mr Gordon it would not be a good idea if the Applicant worked out his notice period and that he told the Applicant that he was not required to do so.

[25] Mr Godden said in his witness statement that the Applicant's normal finishing time was 3pm, and that no arrangement had been made for him to finish early that day. He also said that if the Applicant was to leave work early it would be expected that he would clean up his work place and replace the tools he had been using and lock his tool shed. It would also be expected that the Applicant would complete a time sheet before he left for the day. Mr Godden confirmed that since March 2020 there has been a steady and significant down turn in work for the Company and said that he has been struggling to find work for employees. Most employees have used their paid leave, rather than have their employment terminated. Mr Godden also confirmed that as of 30 July 2020 there were no piling and foundation jobs currently being worked on and all his site supervisors and labourers are on stand down."

[26] Mr Godden was not initially required for cross-examination but was called to give oral evidence when some new evidence emerged during the cross-examination of the Applicant. That evidence related to a discussion the Applicant stated that he had with Mr Godden on 8 May 2020 in relation to JobKeeper payments and a text message sent by Mr Godden to the Applicant on Saturday 1 August in relation to Mr Godden's witness statement in these proceedings.

[27] Mr Inwood confirmed that on 7 May he passed on a message to the Applicant from Mr Gordon, asking the Applicant to go and see Mr Gordon before he left work. Mr Inwood said that in response to a question from the Applicant he told him that he did not know what the request was about. Mr Inwood said that within about 10 minutes of speaking to the Applicant (approximately 2:25pm) he noticed that the Applicant had left work as his car was no longer parked where it had been and the Applicant had left the site shed open. Mr Inwood said that would have been normal practice for the Applicant to return the tools that he had been using to the shed and to lock the shed before going home.

[28] The Respondent submits that between March 2020 and June 2020, it has experienced a significant downturn in work, with a consequent revenue decrease by 60%. At the time of filing its submissions, all employees are employed on Jobkeeper payments and most have been stood down. There were no new jobs booked to start in August 2020 and only 1 job, valued at $96,000, booked for September 2020. The Respondent also submits that there have been changes in the operational requirements of the business. It states that due to the Covid-19 shutdown, the Company has experienced a severe downturn in work and has had to downsize its labour force. It states that at the time of filing its written submissions, the Applicant was one of thirteen redundancies made during April and May 2020. Further, the Respondent submits, if not for the Jobkeeper scheme, it would have made most, if not all, of its employees redundant.

[29] Mr Cawse said that he has made employees in associated entities redundant and that the downturn in work has affected those businesses. In relation to the Applicant's assertion that he could have been offered alternative roles, Mr Cawse said:

• The Respondent had three boilermakers but in April 2020 two were made redundant and the remaining boilermaker is not working at full capacity;

• On 7 May 2020 two experienced labourers were made redundant bringing the total of labourers made redundant to six and the remaining labourers are stood down on JobKeeper;

• There are five excavator operators who are highly skilled and who are stood down on JobKeeper;

• The Respondent has at least five concrete pump operators all more skilled than the Applicant and who are stood down on JobKeeper;

• The Company has one de-watering supervisor who is not operating at full capacity;

• There are currently no earth anchoring jobs and the Company has better skilled anchoring specialists who are currently stood down on JobKeeper;

• The Respondent had three qualified diesel fitters but in April 2020 two were made redundant and the remaining diesel fitter is not working at full capacity.

[30] The Applicant is not a qualified welder, excavator operator or boilermaker. Mr Cawse also gave evidence about the skill levels of employees who are still employed and said that two supervisors have 18 and 13 years experience with the Company respectively and can undertake "Kelly" drilling which the Applicant is not able to perform.[12] Kelly drilling is the type of work which will be available if there is government work on infrastructure which Mr Cawse believes will be the likely result if there is a stimulus package involving construction of infrastructure. Mr Cawse said that he has two all-round supervisors who can do any style of piling. In response to the proposition that the Applicant could have been given work as a pump operator Mr Cawse said that the pump operators employed by the Respondent have more skill than the Applicant.[13] Mr Cawse said that the Applicant is a hard worker and agreed that if the Applicant had signed the JobKeeper nomination form he would have remained in employment while the Respondent assessed whether it would get work back and until at least the next phase of JobKeeper.[14]

[31] Mr Cawse also gave evidence about attempts to assist the Applicant to obtain another position and said that he had made contact with another piling contractor and given the Applicant a good reference.

[32] The Applicant's evidence about the events of 7 May 2020 was that he started work early on that day at the request of Mr Godden as he needed to load a machine and for this reason the Applicant left work early. The Applicant said he has previously had discussions with Mr Damon Cooper (his immediate supervisor) and Mr Mathew Godden in relation to his need to finish work on time or as promptly as possible, as he has parental responsibilities and needs to collect his daughter from day care on Thursdays as her mother works late nights and neither have immediate family or support on the Gold Coast to help with this.

[33] The Applicant said that when he returned to the yard that day after loading out the machine and fixing a few minor issues with some dewatering wells he proceeded to clean out the site shed he had been using on the job. After completing this task and putting away his tools (to the best of his knowledge) the Applicant cleaned the drill rig he had brought back to the yard from the job he was working on. The Applicant left the doors on the site shed open as tools are very limited in the yard and some of the other employees may have needed to use them.

[34] While completing some checks on the drill rig, the Applicant saw Mr Gordon walk out of the front office and look directly at him and then continue to the workshop. The Applicant said that moments later, Mr Inwood came over and said that Mr Gordon wanted to see the Applicant "at the end of the day". The Applicant agreed that he asked Mr Inwood what Mr Gordon wanted to see him about and Mr Inwood said that he did not know. Approximately 5 minutes later, the Applicant spoke with Mr Godden on the phone and also asked what Mr Gordon wanted to see him about. Mr Godden also told the Applicant that he was unsure. The Applicant said that as Mr Godden was the Operations Manager and was not sure what Mr Gordon wanted to see him about, the Applicant decided that he would see Mr Gordon the next morning. The Applicant said that he received a phone call just after 3.00 pm from a co-worker who was also "laid off" that day stating that he had just had a discussion with Mr Gordon. At 3.18 pm the Applicant received his termination notice by email.

[35] In relation to JobKeeper the Applicant said that he received the nomination form on 6 May 2020 at 3:33pm while working until 5.00 pm on a job site. The Applicant also said that his commute to and from the worksite was an hour each way making it a twelve hour day, and he had no access to a printer or time to physically fill in and return the JobKeeper form. The Applicant conceded that he did not reply to the email of 6 May 2020, and said that he knew the job he had been working on was finishing the next day and that he was going to be back in the yard.[15] In response to a question as to why he did not see Mr Gordon before leaving work on 7 May 2020, as requested by Mr Gordon, the Applicant said:

"Because on the job that I'd currently been working on I'd been doing big days. And then the following weeks leading up to it I had actually missed out on seeing my daughter on the Thursdays that I'm meant to pick her up from childcare and have her on the evenings, because of the times that I'd been getting home from work."[16]

[36] When asked why he didn't prioritise this discussion and the completion of the JobKeeper nomination form, having received the letter the night before and knowing that JobKeeper payments or a termination of his employment were imminent, the Applicant's evidence was that he did not have time because he was unloading a machine and sorting everything out from the job that he had just been on. For the first time, while under cross-examination the Applicant asserted that he had asked Mr Godden the next day whether he could go onto JobKeeper and was told by Mr Godden that the decision had been made to terminate his employment.

[37] Mr Godden was called to give evidence in response to this allegation and said that he could not recall having such a conversation with the Applicant. Mr Godden was also asked about a text message exchange he had with the he sent the Applicant on 1 August 2020 in relation to his evidence to the Commission. The text message exchange was initiated by the Applicant who took a screen shot of Mr Godden's witness statement and asked: "is this yours?" Mr Godden's reply was as follows:

"Sorry mate, everything in that statement only comes from internal emails and messages on the day, what he already has proof of anyway. It was drafted by Michael and I was asked to sign it. He asked me to other statements which I won't be doing as I do not want to get involved."

[38] Mr Godden accepted that he sent the text message but maintained that the contents of his witness statement were true and correct and that the text message was sent in response to messages from the Applicant stating that Mr Godden was not helping the Applicant's case. In relation to his conversation with Mr Godden on the afternoon of 7 May 2020, the Applicant had the following exchange with me:

"Mr Rankin, you got an email on 6 May at 3.33 p.m. that said, "Sign it and return to me asap, it will help enormously"? Yes.

You didn't do that, you didn't respond to the email. You don't have a printer. All right, fine. The next day you get back to work, or you're at work, it's 2.22 in the afternoon, you'd been told Mr Gordon wants to see you? Yes.

Please come and see me, and you don't go and see him, you leave, knowing you got that email the day before? But after the conversation I'd had on the phone with Matt Godden, the operations manager, I asked him. I said, "Do you know what Michael wants to see me about?" Because I wouldn't have a clue. Now if the operations manager can't turn around and give you an answer about what the admin manager wants to speak to you about - - -

Why didn't you just go and pick up the phone and ring - if you could ring the operations manager - - -? No, he rung me.

All right? In regards to something else that happened at work.

Okay? And while he was on the phone I asked him the question.

So you asked the question. So you knew he wanted to see you. You asked the question, you didn't get an answer, and you still decided to leave. That's the issue. I'm putting to you, why wouldn't you have taken a little bit of time - if your job's so important to you that you're prepared to come to the Fair Work Commission and run a case about being unfairly dismissed, why wasn't it so important that you could have taken five minutes to find out what Mr Gordon wanted? I guess that I just figured after speaking to another senior who couldn't give me an answer on what it was about, I thought it could have been about anything. If I knew that it was about the JobKeeper or signing forms, or about the termination of my employment- - -"[17]

[39] In response to a question from me as to why he did not telephone Mr Gordon after he received the termination letter which stated that if he had questions he should contact Mr Gordon, the Applicant said that he had already spoken to Mr Godden and Mr Cooper, and he "knew what the answer from Mr Gordon would have been".[18] The Applicant also tendered a series of emails he sent to the Respondent querying his termination payments and the manner in which they were calculated and disputing a deduction of $50 from his wages for three keys which it was asserted the Applicant did not return. There is a degree of hostility on the part of the Applicant in the emails tendered by him.

[40] In relation to remedy the Applicant said that he was not seeking reinstatement. The Applicant sought compensation in the amount of $20,000 to replace the superannuation he had taken out to cover living expenses and an amount of $34,529 being three months salary to compensate for loss of wages that would have been earned if he had still been employed.

[41] As to how long he believes he would have been employed by the Respondent, if not for his position being terminated, the Applicant's evidence is that every other supervisor who was in a similar position is still working for the Respondent[19] and he would have remained in employment and accepted JobKeeper had he been properly consulted and given an opportunity to do so. [20] The Applicant also said that since his position with the Respondent was made redundant, he has "picked up a few days over the last month of just pretty much sole trading, labouring" from August 2020, but has not acquired full time work.[21]

[42] The Applicant also said that he has made various phone calls to other piling companies and other businesses in the construction industry about work but unfortunately there has not been any work available.[22] The Applicant disputed that Mr Cawse had contacted other employers on his behalf and said that he had initiated contact with one other employer referred to by Mr Cawse and had not received a response.

[43] 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."

[44] "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))

[45] On balance, I am satisfied that the employer no longer required the Applicant's job to be performed by anyone because of changes in its operational requirements. In this regard I accept the evidence of Mr Cawse to the effect that the Respondent lost 60% of its business due to the effect of the COVID-19 Pandemic. I also accept that Mr Cawse required fewer supervisors and that he had determined to retain those who were more experienced and could perform Kelly drilling. The Applicant could not perform this work and did not dispute Mr Cawse's evidence in this regard.

[46] Further, I have concluded that the fact that other supervisors remained employed is not indicative of the fact that there were jobs remaining that those supervisors could perform or that the Applicant's job remained. Rather, the evidence establishes that Mr Cawse used the JobKeeper scheme to retain employees in employment for as long as possible, in the hope that the work would return before the JobKeeper scheme concluded. Those employees had no work to perform and this continued to be that case when this application was heard. The evidence also establishes that Mr Cawse's assessment is that the kind of work which will return first is infrastructure work which requires skills the Applicant does not have. The evidence also establishes that the Respondent's workforce has been significantly cut in the sense that the numbers of employees in each classification have been reduced to the bare minimum.

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

[47] For there to be a genuine redundancy within the meaning of s 389 of the Act, the Respondent must have complied with any obligation in a modern award or enterprise agreement to consult about the redundancy. The Applicant asserts that he was covered by the Building and Construction General On-site Award 2010 (the Building Award). The Respondent did not dispute this and in this regard I note that in the letter notifying the Applicant of the termination of his employment, a statement that the Applicant will be able to access the Building Employees Redundancy Trust (BERT) in accordance with the Building Award. I also note that the Respondent stated in its Form F3 Response to the application that it had substantially complied with the consultation requirements in the Building Award and thereby explicitly acknowledged that this Award covered the Applicant.

[48] Clause 8 of the Building Award relevantly provides as follows:

8.1 If an employer makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must:

(a) give notice of the changes to all employees who may be affected by them and their representatives (if any); and

(b) discuss with affected employees and their representatives (if any):

(iii) measures to avoid or reduce the adverse effects of the changes on employees; and

(c) commence discussions as soon as practicable after a definite decision has been made.

8.2 For the purposes of the discussion under clause 8.1(b), the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including:

8.3 Clause 8.2 does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer's interests.

8.4 The employer must promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussion under clause 8.1(b).

significant effects, on employees, includes any of the following:

(b) major changes in the composition, operation or size of the employer's workforce or in the skills required; or

(c) loss of, or reduction in, job or promotion opportunities; or

(f) the need for employees to be retrained or transferred to other work or locations; or

8.6 Where this award makes provision for alteration of any of the matters defined at clause 8.5, such alteration is taken not to have significant effect."

[49] Consultation for the purposes of s. 389(1)(b) of the Act is required to be meaningful and not merely an afterthought. Consultation after an irrevocable decision has been made is not sufficient to meet the requirements of the provision,[23] and the employer is required to give the employee a bona fide opportunity to influence[24] or persuade the decision maker.[25]

[50] The Respondent relies on its email to all employees of 9 April 2020 as meeting its consultation obligations under the Building Award. That email does not make any reference to the possibility of redundancies. There was no evidence about the toolbox talks referred to by Mr Gordon in his evidence. While I do not doubt that employees would have picked up a vibe that all was not well with the Respondent's business, this is not sufficient to meet the consultation requirements in the Building Award.

[51] The Respondent also relies on an email to the Applicant on 6 May 2020 and asserts that this was an attempt to discuss the redundancy with the Applicant and give him an opportunity to discuss any matters. The Respondent asserts that the attempt at discussions continued on 7 May when the Applicant's termination letter was emailed and later delivered to him. I do not accept this submission. The email of 6 May 2020 makes no reference to redundancy or the potential for redundancy or the termination of the Applicant's employment. The email simply informs employees that the Respondent is attempting to qualify for JobKeeper. Further, the email gives no indication that any failure on the part of the Applicant to complete the JobKeeper nomination form will result in his position being made redundant.

[52] The Respondent did not inform the Applicant - either collectively with other employees or individually - of the potential for his position to be made redundant and the resulting termination of his employment. I find that the consultation obligations in the Building Award were not met in relation to any redundancy of the Applicant's position.

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))

[53] The evidence does not support a finding that it would have been reasonable for the Applicant to have been redeployed within the Respondent's enterprise or any associated entity. The Respondent was downsizing across all of its associated entities and there is no evidence that there was any position for the Applicant to be redeployed to. I do not accept that the Applicant should have been retained in employment in preference to other employees. Mr Cawse gave detailed evidence about the skills and qualifications of employees he had decided to retain in employment, and I accept that those employees had different skills to those of the Applicant and that he lacked some of the key skills the Respondent wished to retain.

[54] For the reasons stated, the Applicant's dismissal was not a genuine redundancy within the meaning of the Act. It is therefore necessary to consider whether the Applicant's dismissal was unfair on the basis of the criteria in s. 387 of the Act.

[55] In deciding whether a dismissal was unfair on the grounds that it was harsh, unjust or unreasonable, the Commission is required to consider the criteria in s.387 of the Act, as follows:

1. 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); and

2. whether the person was notified of that reason; and

3. whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

4. any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

5. if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and

6. the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

7. 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; and

8. any other matters that the FWC considers relevant.

[56] In relation to these criteria, the Applicant was not dismissed for any reason related to his capacity or conduct. Accordingly, the criteria in s. 387(a) is not relevant to the question of whether the Applicant was unfairly dismissed. Given that the reason for dismissal did not relate to capacity or conduct, the consideration in s. 387(b) and s. 387(c) is not relevant. There were no discussions about the Applicant's dismissal and the Applicant did not request a support person so that s. 387(d) is also not relevant. Further, the dismissal did not relate to unsatisfactory performance and the question of whether the Applicant was warned is not relevant to the question of whether his dismissal was unfair and accordingly the consideration in s. 387(e) is not relevant.

[57] With respect to s. 387(f) and (g), while the employer is not a small business, neither is it a large business. The Respondent does not have dedicated human resource management specialists or expertise. The Respondent's witnesses presented as truthful and made concessions where it was appropriate that they do so. I accept that Mr Cawse and Mr Gordon did the best that they could in difficult and rapidly evolving circumstances confronting the Respondent's business. Mr Cawse presented as a business owner who had thought carefully about the make-up of his workforce, the personal circumstances of employees and the contributions that each employee had made to his business in terms of skills and experience, and who had made his decisions in relation to which employees to retain based on these considerations. I do not accept that Mr Cawse had any ulterior motive for making the Applicant's position redundant

[58] I accept that any deficiencies in the manner Mr Cawse and Mr Gordon dealt with making the Applicant's position redundant and effecting his dismissal, were inadvertent and the result of genuine misunderstanding about their obligations under the Building Award and legislation. In particular, I accept Mr Cawse's evidence that he did his best to retain employees in employment to position his Company to survive the downturn caused by the COVID-19 Pandemic. I also accept Mr Gordon's evidence that he acted swiftly to dismiss the Applicant because he believed that this was required as soon as a definite decision was made, when what was required was consultation to mitigate the potential effects of the dismissal.

[59] With respect to s. 387(h) there are a number of matters which in my view are relevant to the question of whether the Applicant's dismissal was unfair. There is no dispute that the Applicant was viewed by Mr Cawse as a good worker who worked hard. Mr Cawse states - and I accept - that he recommended the Applicant for other positions. The Applicant had three years of service with the Respondent and had also worked for an associated entity. The Applicant could and should have been given another opportunity to complete the JobKeeper nomination form, particularly in circumstances where he was not clearly informed of the repercussions if he failed to do so. The Applicant's failure to attend the meeting with Mr Gordon was not a reasonable basis for Mr Gordon to have concluded that the Applicant was refusing to sign the JobKeeper nomination form and that the only option was to immediately dismiss him.

[60] Notwithstanding these matters, I am also of the view that the Applicant contributed to the loss of his employment by failing to engage with the Respondent in relation to JobKeeper. There is no suggestion in the Applicant's evidence that he did not read the email from Mr Gordon on 6 May. The Applicant knew on that date that Respondent was in the process of ascertaining whether it was eligible for JobKeeper and that the form was a mechanism by which it could apply for JobKeeper in respect of his employment. The Applicant was asked to see Mr Gordon before he left work on 7 May 2020 and failed to comply with this request. The Applicant's reasons for failing to comply with this request were not convincing. The Applicant was at work during ordinary working hours. He had not requested to leave early and he was given a lawful and reasonable request to attend a meeting with Mr Gordon. If the Applicant was under time pressure on the basis that he had to pick his daughter up from child-care he could have informed Mr Gordon of that fact and made another time for the meeting.

[61] Further, the Applicant could have simply responded to the email on 6 May and advised of his intentions to complete the JobKeeper nomination form. The Applicant could also have requested assistance to print out the JobKeeper nomination form and told Mr Gordon that he intended to complete it and had not been able to do so. The Applicant's conclusion that because persons other than Mr Gordon could not tell him what Mr Gordon wanted to discuss, that the discussion was not important, was not reasonable.

[62] In the context of the COVID-19 Pandemic, the JobKeeper nomination form that had been emailed to him and the reductions in the Respondent's workforce which had occurred prior to 6 May 2020, the Applicant should reasonably have known that the discussion Mr Gordon wanted to have with him was significant for his continued employment, and attended or contacted Mr Gordon to reschedule. The Applicant's failure to take these steps contributed significantly to his dismissal. The Applicant's decision not to attend the meeting suggests that he was avoiding it. This is a matter to which I will return later.

[63] However, weighing the considerations in s. 387 of the Act, I am satisfied that the Applicant was unfairly dismissed. The dismissal was unfair because the Applicant was not informed that his position was in jeopardy due to economic downturn and because he was not given a reasonable opportunity to attend a meeting to discuss the potential for his position being made redundant nor warned of the repercussions of not filling out the JobKeeper nomination form on 7 May 2020.

[64] Having found that the Applicant was protected from unfair dismissal, and that his dismissal was unfair, it is necessary to consider what, if any, remedy should be granted to him. The Applicant did not seek the remedy of reinstatement. I accept that it would be inappropriate to reinstate the Applicant in all the circumstances, particularly in light of the fact that the Applicant's position is redundant notwithstanding that his dismissal was not a case of genuine redundancy as defined in s. 389 of the Act and the hostility and distrust displayed by the Applicant at the hearing and in email correspondence with the Respondent following his dismissal.

[65] 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.[26]

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

[67] It is necessary therefore for me to assess the amount of compensation that should be ordered to be paid to the Applicant. 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.

[68] The established approach to assessing compensation in unfair dismissal cases was set out in Sprigg v Paul Licensed Festival Supermarket[27] and applied and elaborated upon in the context of the current Act by Full Benches of the Commission in a number of cases as follows:[28]

Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).

Step 3: Discount the remaining amount for contingencies.

Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.

Remuneration the Applicant would have received, or would have been likely to receive, if she had not been dismissed (s 392(2)(c))

[69] Calculations of damages or compensation involve an element of speculation in determining an employee's anticipated period of employment. This is because the task involves an assessment of what would have been likely to happen in the future had the employee not been dismissed.[29]

[70] I am satisfied on the balance of probabilities that if the Applicant had not been dismissed on 7 May 2020, he would have remained employed by the Respondent for a further 8 weeks - to 2 July 2020. I make this finding notwithstanding that both the Applicant and Mr Cawse stated that he would have remained employed if he had completed the JobKeeper nomination form. I base this finding on the following matters. The Applicant did not display any urgency about completing the JobKeeper nomination form in circumstances where I do not accept that he had a reasonable excuse for failing to do so. Given the Applicant's hostility and lack of trust in Mr Cawse and Mr Gordon, there is a degree of probability that he would not have completed the form, and would have opted to take a redundancy.

[71] I also find that if the Applicant had remained in employed he would have been stood down and paid JobKeeper payments only, on the basis the projects he was working on had finished and there were no other projects for the Applicant to work on.

[72] It is also the case that Mr Cawse continued to downsize the Respondent's workforce including employees who were or could otherwise have been placed on JobKeeper. Accordingly, there is also a possibility that had the Applicant completed the form and gone on to JobKeeper, his job could still have been determined to be redundant on the basis of the ongoing impact of the COVID-19 and its effect on future projects. In this regard, I note Mr Cawse's evidence - which I accept - in relation to the Applicant's skills and qualifications in the context of the Respondent's workforce. In particular I note there are other supervisors employed by the Respondent who have more specific skills than that of the Applicant and/or particular skills the Applicant does not have, and which are likely to be needed by the Respondent given Mr Cawse's assessment of the kinds of projects the Respondent will be working on into the future.

[73] Finally, I find that the Applicant's correspondence with the Respondent in relation to his termination payments indicates that had his claims in relation to his termination payments been addressed by the Respondent, he would not have disputed his redundancy at all. That correspondence states that if certain payments - including redundancy payments - are not made the Applicant will take matters further. As previously stated, the Applicant's correspondence is suggestive that the employment relationship was tenuous given the lack of trust and the hostility displayed in his email correspondence.

[74] On the basis of the evidence, the project the Applicant was working on had concluded on the day before he was dismissed and there were no other projects upon which he could have been deployed. Accordingly the Applicant would not have earned overtime or travel allowances in that period and at best would have been paid the JobKeeper payment - assuming that he completed the nomination form to receive those payments.

[75] The Applicant was employed on an annual base salary of $116,272.00 which equates to a weekly base salary of $2,236. In a statutory declaration made by Mr Cawse that was filed in response to a direction from me following the hearing, Mr Cawse stated that the Respondent registered for JobKeeper on 7 May 2020, and commenced applying the JobKeeper Scheme to its employees on 7 May 2020. As a result, had the Applicant not been dismissed, he would have received an amount of $750 per week for the eight weeks I have estimated he would have remained in employment - a total of $6,000.00.

[76] I am satisfied that is the remuneration that the Applicant would have received, or would have been likely to receive, if he had not been dismissed.

Remuneration earned (s 392(2)(e)) and income reasonably likely to be earned (s 392(2)(f))

[77] At the point the matter was heard the Applicant had earned $2,450.00 from other employment. However, only $600.00 was earned in the 12 week period following the termination of his employment. Other than those amounts, the Applicant has been in receipt of JobSeeker payments from the federal government. When the amount of $600.00 is deducted from the compensation awarded to the Applicant the residual amount is $5,400.00. This calculation is intended to put the Applicant in the position he would have been in but for the termination of his employment.[30]

[78] No submission was made on behalf of the Respondent that any particular amount of compensation would affect the viability of the Respondent's business. My view is that no adjustment will be made on this account.

[79] The Applicant's length of service with the Respondent (2 years) and its associated entities does not justify any adjustment to the amount of compensation. In reaching this conclusion I have had regard to the Applicant's ability to access the BERT scheme in respect of his redundancy entitlements notwithstanding that he may have chosen not to do so following his dismissal. I have also had regard to the fact that the Respondent has paid redundancy payments to the Applicant in the form of BERT contributions.

[80] The evidence establishes that the Applicant made reasonable efforts to obtain alternative employment following his dismissal. The Applicant states that he applied for numerous positions but, unsurprisingly in the current environment, he has not been able to obtain alternative employment.

[81] In all the circumstances, my view is that the Applicant acted reasonably to mitigate the loss suffered by him because of the dismissal and I do not consider it appropriate to reduce the compensation on this account.

[82] It is necessary to consider whether to discount the remaining amount ($5,400.00) for "contingencies". This step is a means of taking into account the possibility that the occurrence of contingencies to which the Applicant was subject might have brought about some change in earning capacity or earnings.[31] Positive considerations which might have resulted in advancement and increased earnings are also taken into account.

[83] The discount for contingencies should only be applied in respect to an "anticipated period of employment" that is not actually known, that is a period that is prospective to the date of the decision.[32]

[84] Because I am considering an anticipated period of employment which has already passed (eight weeks from 7 May 2020), there is no uncertainty about the Applicant's earnings, capacity or any other matters during that period of time. In all the circumstances, my view is that it is not appropriate to discount or increase the figure of $5,400.00 for contingencies.

[85] I do not intend make any deduction for wages paid to the Applicant in lieu of notice, on the basis that those wages would have been required to be paid in any event if the Applicant's employment had continued for the period I have estimated that he would have remained in employment. I also do not intend to make a deduction for redundancy payments the Applicant may have accessed from BERT on the basis that those payments would also have been available to the Applicant if he accessed them at the point at which I have estimated that his employment would have ended. I have also not made any deduction for the Applicant's failure to take reasonable steps to have a discussion with Mr Gordon and to complete the JobKeeper nomination form on the basis that I have already taken these matters into account in estimating the period the Applicant would have remained in employment.

[86] The Applicant also sought compensation for the amount of $20,000.00 that he has accessed from his superannuation fund. Leaving aside the question of whether this is an amount that can be included in an amount of compensation, I have determined that no allowance should be made for this amount on the basis that if the Applicant had remained in employment he would have been paid JobKeeper payments in lieu of the JobSeeker payments he has been receiving and would likely have accessed his superannuation in any event, given the difference between both payments and his usual earnings.

[87] I have considered the impact of taxation, but my view is that I prefer to determine compensation as a gross amount and leave taxation for determination.

[88] The Applicant did not engage in any misconduct, so my view is that this has no relevance to the assessment of compensation.

Shock, distress or humiliation, or other analogous hurt (s 392(4))

[89] I note that in accordance with s 392(4) of the Act, the amount of compensation calculated does not include a component for shock, humiliation or distress.

[90] The amount of $5,400.00 is less than half the amount of the high income threshold immediately before the dismissal. It is also less than the total amount of remuneration to which the Applicant was entitled in his employment with the Respondent during the 26 weeks immediately before his dismissal. In those circumstances, my view is that there is no basis to reduce the amount of $5,400.00 by reason of s 392(5) of the Act.

[91] No application has been made to date by the Respondent for any amount of compensation awarded to be paid in the form of instalments.

[92] In my view, the application of the Sprigg formula does not, in this case, yield an amount that is clearly excessive or clearly inadequate. Accordingly, my view is that there is no basis for me to reassess the assumptions made in reaching the amount of $5,400.00.[33]

[93] For the reasons I have given, my view is that a remedy of compensation in the sum of $5,400.00 (less taxation as required by law) to be paid to the Applicant and superannuation contributions of $570.00 to be paid into the Applicant's nominated superannuation fund is appropriate in the circumstances of this case. An Order to that effect will issue with this Decision.

[1] Exhibit A1 Witness Statement of Jeremy Rankin.

[2] Exhibit R1 Witness Statement of Michael James Gordon.

[3] Exhibit R2 Witness Statement of Matt Cawse, Exhibit R3 Further Witness Statement of Matt Cawse.

[4] Exhibit R4 Witness Statement of Matthew Godden, R5 Further Witness Statement of Matthew Godden.

[23] Masawan v Escada Textilvertrieb T/A Escada [2011] FWA 4239 at [19] citing CFMEU v Newcastle Wallsend Coal Company Ltd (1998) IR 202.

[24] Siriwardhana v FDGH Pty Ltd t/as Caltex Fitzroy North [2013] FWC 5609 at [18].

[25] Livingstones Australia v ICF (Australia) Pty Ltd T/A IC Frith & Associates [2014] FWCFB 1276at [35].

[26] Kable v Bozelle, Michael Keith T/A Matilda Greenbank [2015] FWCFB 3512 at [17]

[27] (1998) 88 IR 21

[28] Tabro Meat Pty Ltd v Heffernan [2011] FWAFB 1080; Read v Golden Square Child Care Centre [2013] FWCFB 762; Bowden v Ottrey Homes Cobram [2013] FWCFB 431

[29] Double N Equipment Hire Pty Ltd v Humphries [2016] FWCFB 7206 at [16]- [17]

[30] Bowden at [24], citing Ellawala v Australian Postal Corporation Print S5109 at [35]

[31] Ellawala v Australian Postal Corporation Print S5109 at [36]

[32] Enhance Systems Pty Ltd v Cox PR910779 at [39]

[33] Smith v Moore Paragon Australia Ltd [2004] AIRC 57; (2004) 130 IR 446 at [32]

Printed by authority of the Commonwealth Government Printer