s.394 - Application for unfair dismissal remedy

• [1] Mr Stuart Edwards has made an application for an unfair dismissal remedy under s. 394 of the Fair Work Act 2009 (Cth) (the Act). Mr Edwards was employed by Visy Packaging Pty Ltd (Visy) on a regular and systematic basis as a casual feeder attendant in Shepparton, Victoria. He was dismissed with effect from 8 November 2024 after Visy concluded due to a significant downturn in production it no longer required a casual feeder attendant to work the afternoon shift. Mr Edwards says that the real reason for his dismissal was because he "spoke out" during a pre-start meeting after receiving the wrong information on the production line, and for asking why employees weren't allowed to park in front of the office anymore. Mr Edwards says Mr Langlands, the Manufacturing Manager, removed him from the afternoon shift roster and as punishment he was offered shifts that Visy knew he could not work because of his diabetes. Visy maintains the reason for Mr Edwards dismissal was because it no longer required casual labour on the afternoon shift after a drop in production volumes because of the decline in customer demand.

• [2] The following preliminary matters are not in dispute. Mr Edwards application was made within the 21-day period prescribed by s. 394(2) of the Act. Visy Packaging Pty Ltd is not a Small Business employer within the meaning of the Act therefore the Small Business Fair Dismissal Code does not apply. Mr Edwards does not raise in his application that the dismissal was a case of genuine redundancy, however for completeness I am satisfied his dismissal was not for reasons of redundancy and even if Mr Edwards had been made redundant as a causal employee he would not have been entitled to any redundancy pay.[1]

• [3] During his employment at Visy, Mr Edwards was covered by the Visy Packaging Pty Limited (Shepparton) Enterprise Agreement 2022[2], and he earned less than the high-income threshold. It is also not in dispute that Mr Edwards was employed on a regular and systematic basis as a casual employee and had completed a period of employment with Visy that was at least the minimum employment period required by s. 382 of the Act. I am satisfied that Mr Edwards is a person protected from unfair dismissal. I am therefore required to consider the merits of Mr Edwards unfair dismissal application taking into account the matters in s. 387 of the Act.

Was Mr Edwards dismissal for a valid reason related to capacity or conduct.

• [4] Visy submits that Mr Edwards was not dismissed for reasons of conduct. Visy also submits that Mr Edwards could at all times perform the role of feeder attendant. Visy submits that although Mr Edwards recently claimed he could not work the day shift because he has diabetes there was no medical evidence to support this and he had worked on the day shift in the past. The reason relied on by Visy as a valid reason for the dismissal of Mr Edwards was that there was a downturn in production due to customer demand and in response an operational decision was made to reduce the amount of work performed on the afternoon shift. The consequence of the decision was that there would be fewer production lines operating on the afternoon shift and the production line changeovers required to feed new product were to be predominantly performed on the day shift. To appropriately adjust its labour requirements Visy no longer required a casual feeder attendant on the afternoon shift. Visy contends that Mr Edwards had declined the offer to work day shift and therefore it could not reasonably offer him any other work. Visy submits that Mr Edwards reasons for refusing the offer of work on dayshift are of no consequence because he was a casual employee and as a casual he had the right to refuse work offered to him. Likewise, Visy submits because Mr Edwards was a casual employee it had no obligation to continue to offer him afternoon shift work when there were no shifts available for a casual feeder attendant.

• [5] Mr Edwards contends that the real reason for his dismissal is because he spoke out about two issues at a pre-start meeting on 3 October 2024. According to Mr Edwards there were two incidents of conduct that he says led to the decision to remove him from the afternoon shift roster and only offer him work on the day shift roster. Mr Edwards says during the pre-start meeting, the afternoon shift supervisor announced that employees were no longer allowed to park in front of the office and when he asked why, Mr Langlands responded stating that it was for traffic management reasons due to feedback from the truck drivers not being able to see past the parked cars which was a safety issue. Mr Edwards says Mr Langlands was abrupt and ended by asking in a sarcastic tone "is that alright with you Stuart". Mr Edwards says the second incident occurred at the end of the meeting when he raised having received the wrong information about a situation on the production line and suggested that he would be better off getting the information from the person running the line on the previous shift. According to Mr Edwards, Mr Langlands was annoyed and responded that Mr Edwards suggestion would mean that he would have to go in early on his own time and then come back to the pre-start meeting.

• [6] Mr Edwards says that on 9 October 2024 he was informed that Mr Langlands had changed the roster and he had been rostered to work the day shift the following week. Mr Edwards notified Mr Steen his supervisor that he was not available to work the day shift. Mr Edwards relied on a screen shot of a text message he says he sent to Mr Langlands on Saturday 12 October 2024 stating "just letting you know that I'm not available for shifts other than Arvo for the medical reasons I have discussed with you before". Mr Edwards submits that he has diabetes and that it is for this reason he cannot work any shifts other than the afternoon shift. Mr Edwards says that moving him to day shift at such short notice would affect his ability to manage his insulin levels.

• [7] Mr Langlands is responsible for the co-ordination of manufacturing resources at the Plant, encompassing raw materials, labour and production facilities, including warehouse and logistics. Mr Langlands says the decision to dismiss Mr Edwards was not related to the events that occurred at the pre-start meeting on 3 October 2025. According to Mr Langlands, Mr Edwards employment ended because Visy no longer needed an additional feeder attendant on the afternoon shift because there had been a drop in planned production due to changes in customer demand. Mr Langlands says that Mr Edwards was not the only employee affected by the drop in planned production, arrangements had been made with other fulltime afternoon shift employees to move to the day shift for an undefined period of time because there was an excess of labour on the afternoon shift. Mr Langlands later conceded that there had only been one permanent employee moved and that movement occurred prior to Mr Edwards being taken off the afternoon shift roster and moved to the day shift. Mr Langlands relies on rosters from the week beginning 13 October 2024 through to 24 November 2024 filed with his evidence. The rosters show that no casual feeder attendant was required or engaged during the afternoon shift for the period of October to the end of November 2024.

• [8] Mr Langlands says that Mr Edwards was a highly skilled worker and as a consequence of the changes he needed him to work the day shift. Mr Langlands gave evidence that due to the drop in production the "changeovers" had been moved to the day shift. However, this evidence was disputed and was not reflected in the shift rosters. The rosters provided by Mr Langlands recorded some of the changeovers still occurring on the afternoon shift. Mr Langlands explanation was that the changeovers are fluid, and it is for that reason they don't usually record them on the roster and the rosters don't accurately record the changeovers that would have occurred. Mr Langlands says regardless, due to the shorter production runs the changeovers are now predominantly planned for the day shift and there is no requirement for a casual feeder attendant on the afternoon shift.

• [9] Mr Matthew is Head of Operations Food Can and is responsible for operations across Food Can at Shepparton and Wodonga in Victoria. Mr Matthew says that over the past 12 months there has been a decline in production volumes at the Shepparton site which have resulted in most changeovers being scheduled on the day shift. He says this requires the skilled changeover labour to work during the day shift as opposed to the afternoon shifts. Mr Matthew says because of the cost control measures introduced by Visy management and the shorter production runs, the decision was made to complete all possible work on day shift for the foreseeable future. According to Mr Matthew the cost control measures meant that the planned production volumes only required three lines to run on the afternoon shift and the decision was made where possible to move all the production changeovers to the day shift and therefore Mr Edwards was no longer required to work the afternoon shift. He says that Mr Edwards did not report to him and he only had the occasion to interact with him once every couple of months however he acknowledges that Mr Edwards was a skilled feeder attendant and he had previously promoted Mr Edwards and offered him full time employment. Mr Matthew says that he had no issue with Mr Edwards work and had previously arranged for Mr Edwards to be upskilled to assist with changeovers and was given a pay increase as a result. Mr Mattews says that at the time Visy offered Mr Edwards the day shifts he was not made aware by Mr Edwards or any other person that he could only work afternoon shift due to having diabetes. Mr Matthew says that he was aware Mr Edwards had in the past declined offers of permanent full-time employment because he preferred the flexibility of being a casual employee. Mr Matthew says he was not aware that Mr Edwards could not work day shift because of the alleged diabetes and recalled that Mr Edwards had previously worked day shift when it suited him to do so.

• [10] The Commission must make a finding as to whether there was a valid reason for Mr Edwards dismissal related to his capacity or conduct. Capacity is the employee's ability to do the job as required by the employer. Capacity also includes the employee's ability to do the work they were employed to do. The appropriate test for capacity is not whether the employee was working to their personal best, but whether the work was performed satisfactorily when looked at objectively.[3] The concept of "capacity" in s 387(a) as a basis for a valid reason for dismissal goes beyond the physical or skill capacity of the employee, and encompasses situations where employees do not have or maintain the necessary licence, certification, qualification, approval or accreditation to lawfully perform the inherent requirements of their job.[4] Where an employee cannot perform the inherent requirements of their job and there is no reasonable scope for the employee to be redeployed into another role, it is likely that there will be a valid reason for dismissal based on the employee's capacity.

• [11] I make the following observations and findings. I find Mr Langlands evidence about the changeovers to be unconvincing, however regardless of when the changeovers occurred, his evidence that Visy did not require an additional casual feeder attendant on the afternoon shift because they were running less production lines remained undisturbed. Mr Edwards was given the opportunity to fill the day shift requirement before Visy engaged labour hire to backfill the vacant position. Mr Langlands tried to engage with Mr Edwards to discuss the ongoing labour requirements however Mr Edwards did not accept or return any of his calls. Mr Langlands made multiple attempts to contact Mr Edwards to discuss his ongoing availability, however Mr Edwards preference was to only communicate by text message which understandably made it somewhat difficult for Mr Langlands to discuss the operational requirements of the business.

• [12] Mr Edwards was engaged as a casual employee and he remained as a casual because it was his preference to do so. Mr Edwards had a preference to work afternoon shift because of the penalty rates and as he put it, because it suited him. Mr Edwards employment came to an end because regardless of his reasons for doing so, he refused to consider or work any other shifts that were offered to him. Mr Edwards could work the dayshift if it was an ongoing arrangement however after declining the offer to work the day shift Mr Edwards declined to engage in any meaningful way with Visy to discuss his ongoing availability. Mr Edwards simply refused to work any shift other than the afternoon shift, made no inquiries about any adjustments that could be made to accommodate his diabetes and did not engage meaningfully with Visy when it attempted to contact him to discuss ongoing work. Further, Mr Edwards concedes that at the time his direct supervisor asked if he could work the day shift the reason given was due to the downturn in production and he did not dispute that as a consequence only three production lines were operating at the time his dismissal took effect. Mr Edwards does not refute the evidence that there are five production lines that usually run on the afternoon shift.

• [13] For completeness, I address Mr Edwards submissions on the issue of his alleged diabetes. Mr Langlands and Mr Matthew gave evidence that they were not aware of Mr Edwards medical condition. Mr Edwards relies on a single text message he sent to Mr Langlands on 12 October 2024 stating "just letting you know that I'm not available for shifts other than Arvo for the medical reasons I have discussed with you before". Mr Edwards did not provide actual evidence of his medical condition or convincing evidence as to when he had discussed the details. Although there is no medical evidence before me that would support a finding that Mr Edwards could not work the day shift if he wanted to, I do not need to decide whether or not Mr Edwards had diabetes or if he had in fact communicated this to Mr Langlands or Mr Matthew because Mr Edwards did not dispute that he had previously worked day shifts and his evidence was that if he was offered a permanent day shift role or consistent day shifts, dependent on the conditions he might have accepted it. Further, whether Mr Langlands was aware of Mr Edwards condition is not relevant because Mr Edwards medical capacity to perform the role of feeder attendant is not a reason Visy is relying on for his dismissal.

• [14] I am satisfied that Mr Edwards was not dismissed for his capacity to perform the role and Visy do not rely on Mr Edwards conduct as a valid reason for his dismissal. I am not persuaded by Mr Edwards that he was dismissed for the events that occurred on 3 October 2024, it is my view that there is insufficient evidence to suggest otherwise. I also find Mr Edwards submission to be of no consequence because Visy does not rely on Mr Edwards conduct as a reason for his dismissal and I am persuaded by Mr Matthew's evidence that Visy required Mr Edwards skills on the day shift and the only reason his employment came to an end is because there were no afternoon shifts for a casual feeder attendant for the foreseeable future. Therefore, there was no valid reason for Mr Edwards dismissal related to his capacity or conduct (see s. 387(a)), there was no notification of, or an opportunity to respond to, such a reason (ss. 387 (b) and (c)).

• [15] As to the other mandatory considerations in s. 387, there was no unreasonable refusal of a support person (s. 387(d)). The termination of Mr Edwards employment was not a result of poor performance and he had not received any warnings. Mr Edwards was considered to be a reliable and well skilled employee, therefore s. 387(e) is not a relevant consideration. Mr Edwards refused to engage with Visy prior to his dismissal and therefore I find s. 387(f) to be of no relevance.

• [16] However, I have formed the view that Visy had a legitimate reason for Mr Edwards dismissal, which is a relevant matter under (h). The reason was that there was a substantial drop in production to the effect of 65 million cans in 2024 due to a decline in customer product demand, consequently there were fewer lines running on the afternoon shift resulting in there being no opportunity to offer ongoing consistent work on the afternoon shift to Mr Edwards. Visy had made attempts to maintain the employment relationship however because Mr Edwards had refused to work any shift other than the day shift there were no other shifts Visy could offer him at that time. Mr Edwards was a casual employee and Visy had no obligation to continue to offer him afternoon shift work when there were no shifts available for a casual feeder attendant. In my opinion Visy had a legitimate reason to dismiss Mr Edwards and there was nothing about the dismissal that was harsh, unjust or unreasonable.

• [17] The application is dismissed. An order[5] to this effect will be published separately to this decision.

[1] s.123 Fair Work Act 2009 (Cth).

[2] [2023] FWCA 2706.

[3] Crozier v Palazzo Corporation Pty (2000) 98 IR 137 at [62].

[4] Reseigh v Stegbar Pty Ltd [2020] FWCFB 533 at [42].

[5] PR709922.

Printed by authority of the Commonwealth Government Printer