Employer’s Appeal Against Unfair Redundancy Finding Refused

Case: Cooke & Dowsett Pty Ltd v Andronicou [2014] FWCFB 447
Commission: Fair Work Commission – Full Bench
Members: Vice President Catanzariti, Senior Deputy President Hamberger and Commissioner Gregory
Decision date: 16 January 2014
Outcome: Permission to appeal refused
Original decision: Andronicou [2013] FWC 8097, Commissioner Bissett

Overview

The Fair Work Commission Full Bench refused an employer permission to appeal a decision that found an employee had been unfairly dismissed following a purported redundancy.

The employee, a plumber who had been injured at work, was dismissed after the employer claimed his position was no longer required due to a downturn in business and the completion of a construction project.

The original Commissioner found that the employer had failed to establish that the employee’s job was no longer required to be performed by anyone. The Full Bench concluded that this finding was reasonably open on the evidence and that the employer had not demonstrated a sufficient public interest basis for an appeal.

The original unfair dismissal finding and compensation order therefore remained in place.

Background

Mr Marios Andronicou commenced employment with Cooke & Dowsett Pty Ltd on 24 August 2011 as a daily-hire plumber under the applicable enterprise agreement.

He initially worked on the Villa Maria project before being transferred to the Swinburne project in September 2012. On 21 September 2012, he suffered an ankle injury and was unable to work until January 2013. He subsequently returned on restricted duties at the employer’s warehouse.

The Villa Maria project concluded in November 2012. Three employees working on that project were made redundant, but were successfully redeployed.

The employer argued that Mr Andronicou had originally been employed for the Villa Maria project and that his transfer to Swinburne was temporary. It said that, when he became fit to return to his pre-injury duties in April 2013, Villa Maria had finished and no suitable redeployment was available.

Mr Andronicou disputed that he was employed specifically for Villa Maria. He said his work at Swinburne was ongoing and that the position he had been performing remained necessary.

The original decision

Commissioner Bissett found that the employer had not established a genuine redundancy under s.389 of the Fair Work Act 2009.

The employer relied on evidence of a downturn and reductions in workforce numbers. However, the Commissioner identified major inconsistencies in the evidence, which had not been adequately explained.

The Commissioner was not satisfied that the employer had established that it no longer required the employee’s job to be performed by anyone because of its operational requirements.

The failure to comply with consultation obligations under the enterprise agreement was also identified as an additional basis supporting the finding that the redundancy was not genuine.

The Commissioner found the dismissal unfair. Reinstatement was considered inappropriate, and compensation was ordered, taking account of the employee’s circumstances and the employer’s obligations under the Victorian Accident Compensation Act 1985.

The employer’s appeal

Cooke & Dowsett challenged the original decision on a number of grounds, including that the Commissioner:

Incorrectly rejected evidence of workforce reductions.
Failed to recognise that the completion of construction projects was part of the normal operation of the industry.
Incorrectly found that consultation obligations applied and had not been met.
Misinterpreted the employer’s obligations under the Victorian Accident Compensation Act.
Made errors in assessing the period of future employment and the amount of compensation.

The employer argued that the evidence of a business downturn supported the conclusion that the employee’s job was no longer required.

Mr Andronicou, represented by Just Relations, submitted that the Commissioner was entitled to reject the employer’s evidence because of contradictions between the witness evidence and supporting documents.

Full Bench consideration

Permission to appeal and public interest

Under s.400(1) of the Act, permission to appeal an unfair dismissal decision may only be granted where the Full Bench is satisfied that it is in the public interest.

The Full Bench considered that the employer had not demonstrated that the case raised an issue of sufficient public importance, revealed a significant error, or otherwise justified appellate intervention.

Evidence of redundancy

The Full Bench accepted that the Commissioner was responsible for assessing the evidence, including witness credibility.

Although the Full Bench noted that it was somewhat unusual for Christmas newsletters to be relied upon in evaluating whether a business had experienced a downturn, it was the employer that had relied on the evidence at first instance.

The Full Bench was not satisfied that the Commissioner had made a significant error of fact. It was reasonably open to her to conclude that the employer had not established that the employee’s job was no longer required.

Consultation obligations

As the finding that the employer had not established that the job was no longer required was sufficient to support the decision, the Full Bench found it unnecessary to consider whether the Commissioner’s findings concerning consultation were reasonably open to her.

Accident compensation obligations and remedy

The Full Bench was not satisfied that the Commissioner had made an error of law in interpreting the relevant provisions of the Victorian Accident Compensation Act.

It concluded that the findings concerning both the unfair dismissal and compensation were open to the Commissioner.

Decision

The Full Bench refused permission to appeal.

The original decision and compensation order remained in effect. The stay of the order was lifted.

Significance

The decision reinforces several important principles concerning redundancy dismissals:

The employer must establish that the job is no longer required. A general downturn or reduction in employee numbers does not, without reliable supporting evidence, necessarily establish that a particular position has become redundant.
Evidence must be consistent and credible. The Commission is entitled to assess inconsistencies in an employer’s evidence and determine whether its redundancy explanation is supported.
The end of a project does not automatically establish genuine redundancy. The question remains whether the employee’s job is no longer required to be performed by anyone because of operational changes.
Consultation obligations may be independently relevant. Failure to comply with applicable enterprise agreement requirements can provide an additional basis for finding that a redundancy is not genuine.
Appeals require more than disagreement with the original decision. The Full Bench will not intervene merely because an employer considers that a different conclusion should have been reached.

The decision is particularly relevant where an employer relies on project completion or a claimed industry downturn to justify a redundancy, but the evidence does not clearly establish that the employee’s position has ceased to be required.

Representatives

Employee: Mr G. Dircks, Just Relations.
Employer: Mr J. D’Abaco, Counsel.