WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION. PARTIES LESLIE FRED FREE, APPLICANT v. BORAL WINDOW SYSTEMS PTY LTD, RESPONDENT CORAM COMMISSIONER S J KENNER DELIVERED THURSDAY, 22 MARCH 2001 FILE NO/S APPLICATION 1379 OF 2000 CITATION NO. 2001 WAIRC 02491 _________________________________________________________________________ Result Declaration issued. Representation Applicant Mr L Free in person Respondent Mr J Britts as agent _________________________________________________________________________ Reasons for Decision. (Extempore) 1. By this application pursuant to s 29(1)(b)(i) of the Industrial Relations Act 1979 (“the Act”) Leslie Fred Free (“the applicant”) alleges that Boral Window Systems Pty Ltd (“the respondent”) on or about 4 August 2000 unfairly dismissed him. At all material times between 21 May 1998 and 4 August 2000 the applicant was employed by the respondent, as it is common ground, as a factory hand. The applicant was employed in duties involving assembling window frames and sashes and it is also common ground that his employment was subject to the terms of the Metal Trades (General) Award No 13 of 1965 as amended from time to time (“the Award”). 2. It is also agreed that the applicant worked 38 hours per week, was a permanent full-time employee, and his employment, as I have said, came to an end on 4 August 2000. On that day it is said that the applicant had his employment terminated on the grounds of redundancy. 3. The respondent objects to and opposes the applicant’s claim and says that he was fairly dismissed by reason of a bona fide redundancy. 4. The facts in this matter are relatively straightforward and may be stated as follows. The applicant testified that on 28 October 1998 he reported to his employer a workplace injury, leading to an eventual diagnosis of carpal tunnel syndrome. Between this time and in or about August 2000, the applicant underwent various treatments for this condition and also received workers compensation payments. The latter was common ground also. 5. In this time the respondent’s manager, Mr Spires, who on the evidence, discussed with the applicant his medical condition and what was occurring generally in the workplace, visited the applicant at his house. The applicant said that Mr Spires urged him to return to work as soon as he could. In times leading up to August 2000 Mr Spires testified that he mentioned that work demand at the respondent’s premises had fallen off, he said due in large part, to the introduction of the goods and services tax. 6. Mr Spires conceded however in evidence, that he did not tell the applicant at any time that his position was being contemplated to be or was to be made redundant. The applicant, on the evidence, recommenced at work on light duties on or about 1 August 2000. He said at that time he raised the need for prescription safety glasses but was WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1205 81 W.A.I.G. told by the respondent not to worry about this at that time. The applicant thought this was odd. 7. On Friday, 4 August 2000, at approximately 11 am on the evidence, the applicant was called into Mr Spires’ office in the presence of another employee of the respondent and was told by him that he was being made redundant because of a downturn in work and was handed a letter of the same date confirming this. That letter, which is exhibit A1, formal parts omitted, provides as follows— “Further to our recent discussions, this letter con- firms that your employment with Boral Window Systems, Bunbury Operations, will terminate on 4 August 2000. As we have discussed, your position has become redundant as a result of shortage of work and a reduced demand for our products. The finan- cial arrangements connected with your termination are outlined in the attached sheets. These funds will be transferred to your previously nominated bank account tonight.” 8. It is also common ground on the evidence before the Commission, that the applicant received from the respondent, by way of termination payments, two weeks wages in lieu of notice in the sum of $879.20 and also six weeks severance pay in the sum of $2637.60 pursuant to the terms of the Award. 9. The evidence also is that it was offered to the applicant that if he wished to he could leave the premises there and then. However, he elected to work to the end of the day, which he did. 10. As to the downturn in the respondent’s business, and the need for redundancies, Mr Spires referred to the goods and services tax concerns that the respondent was experiencing from in or about February 2000. Exhibit R1 was tendered in support of the respondent’s case, which exhibit refers to various schedules of factory hours in the period June, July, and up and to the end of September 2000. 11. This evidence shows a very substantial fall off in demand over that period. Additionally Mr Spires gave evidence as to other steps taken by the respondent to address this situation, including employees going on annual leave; options discussed including a shorter working week and generally, a drive to reduce costs. 12. There is also evidence before the Commission through Mr Spires that indeed some months prior to August 2000 the respondent, at least in Perth, was preparing for possible redundancies, and in that regard Mr Spires made reference to emails with the Sydney head office of the company and the Perth head office. He furthermore gave evidence that some two to three weeks prior to the week ending 5 August 2000, he specifically looked at who may have to be made redundant from the Bunbury operations. 13. The evidence was that Mr Spires received actual confirmation of the decision to make employees redundant on or about 2 August 2000 by the Perth office of the company. Findings 14. I will turn now to my findings and conclusions in relation to this matter. From all of the evidence I accept that the respondent on the evidence did experience a substantial reduction in business demand as it was stated as a result of the goods and services tax. I accept on the evidence, and I find, that as a consequence of that development the respondent needed to significantly reduce its costs and potentially its numbers of employees. 15. I am also satisfied on the evidence, and I find, that there was consideration by the respondent of alternatives to redundancy with employees, such as employees taking annual leave, the possibility of a shorter working week, and other arrangements. However, I observe that those consultations did not include the applicant. 16. I also find that in relation to the latter observation there was no discussion with the applicant as to specific issues raised with the other employees, but I do accept on the evidence that there was probably some mention made of a possibility of a reduction in staff at some point during the visits by Mr Spires to the applicant’s home before he returned to the workplace on 1 August 2000. 17. I am also satisfied on the evidence that on the resumption of work on 1 August 2000 the applicant was given no indication of his employment being at risk, despite the evidence of the respondent that there was at least an identification of those who could possibly be made redundant, some two to three weeks prior to that time. 18. Whilst I have said on the evidence that it appears to the Commission that there was confirmation of the need for the respondent to make employees redundant on or about 2 August 2000, in my opinion, on the evidence, it is open to infer and I do infer, that it is more likely than not that the identification of potential employees to be made redundant some two to three weeks prior than this may well have included the applicant’s position. 19. As I have also observed on the evidence, there was no discussion of any form in any event with the applicant from 2 August 2000 until the notification by the respondent to the applicant of his dismissal mid morning on 4 August 2000. 20. The evidence also is, and I find, that the applicant, as he informs the Commission, is still not medically fit to undertake any work and has not been since his dismissal, been in receipt of any workers compensation. As to his medical fitness I refer in that regard to exhibit A2, that being a Centrelink medical certificate issued by Dr Michael M Comparti, who on the evidence, is the applicant’s present treating medical practitioner. The Principles 21. I turn to the principles in relation to these matters. The relevant principles in relation to an unfair dismissal claim arising from a situation of redundancy such as this are well established. It is incumbent on an applicant to establish on balance if challenging their selection for redundancy, that another employee, apart from the applicant, should have been made redundant, and in that regard I refer to two authorities, they being AMWSU and Anor v The Australian Shipbuilding Industries, Western Australia, Pty Ltd (1987) 67 WAIG 733, and Gromark Packaging v The FMWU (1992) 46 IR 98. However, this is not an exclusive or sole criterion, as considerations as to any unfairness in the process used in effecting a redundancy can also be taken into account, and in that regard I refer to MEWU v Newcrest Mining Limited (1993) 73 WAIG 969, and also FPFAIU v Jason Industries Limited (1994) 74 WAIG 32. 22. Additionally, it is for the Commission to consider all of the circumstances surrounding the termination of the employment, having regard to s 26 of the Act. In applying in this case what has been now well established as the comparative test in the Australian Shipbuilding Industries decision, I am not satisfied on the evidence, that it has been established on balance that an employee other than the applicant should have been selected for redundancy in preference to him. 23. Whilst there was some evidence before the Commission as to the circumstances of two or three other employees, that evidence has not established, in my view, why a determination should have been made by the respondent in the applicant’s favour. 24. However, having considered that proposition, that is not the end of the matter. It is clear on the evidence, as I have found it to be, that there was no consultation with Mr Free once a definite decision had been made by the respondent to make him redundant as required by clause 32A—Redundancy, of the Award. 25. Additionally, in my opinion, there was no compliance by the respondent with the terms of Part 5 of the Minimum Conditions of Employment Act 1993 (“MCEA”) to the extent that these provisions are implied into the Award and not otherwise satisfied by the operation of clause 32A of the Award. 26. The respondent had a lawful obligation to discuss with the affected employees the matters set out in these instruments and on the evidence, those discussions simply did not take place with the applicant. 27. These obligations carry with them more than just an obligation to advise of a decision that occurred in this WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 81 W.A.I.G. 1206 case. The purpose of these obligations is to enable adequate warning of impending redundancies to be given to enable employees, and where relevant unions, to receive relevant information as to impending redundancies, and at least to have some input into the selection process, to enable alternatives to be discussed, if any, and to consider means that may mitigate against the adverse effects of redundancy. Clearly on the evidence in relation to the applicant none of this occurred. Conclusion 28. For these reasons in my view, I consider that the applicant’s dismissal was, in all the circumstances, harsh, oppressive and unfair. In this case there was both an award and statutory obligation to consult with the affected employee as a part of the redundancy process. The circumstances in this particular case are very similar to those in another case which was before the Commission as presently constituted in the matter of AFMEPKIU v Goldfields Contractors Pty Ltd (2000) 80 WAIG 2749, which decision was upheld on appeal by a Full Bench of this Commission. 29. I refer to another matter which was raised somewhat obliquely by the applicant in his notice of application, that being s 84AA of the Workers Compensation and Rehabilitation Act 1981. Whilst the matter was mentioned it wasn’t pressed and nor was it dealt with by the agent for the respondent. My view in relation to that matter is that if indeed that provision did apply, which I think there is considerable doubt in the present circumstances, it would be open to conclude that in the circumstance of redundancy, as I have found it to have occurred being bona fide, it was not reasonably practicable for the respondent to keep the position open, all things considered. 30. Having said that, I now turn to the question of relief in this case. The applicant seeks compensation for loss. It is not in dispute that the applicant was paid on the termination of his employment, some $3,516.80, representing two weeks wages in lieu of notice, and six weeks redundancy pay, which payments were made pursuant to the terms of the Award, consistent with the applicant’s length of service. 31. On the basis of my conclusion that the applicant has not established that someone other than he should have been made redundant, and therefore he should not have been dismissed, it is not in my opinion, open for the Commission to consider loss in terms of ongoing income, which was the conclusion that the Commission as presently constituted reached in Goldfields Contractors. 32. Furthermore, I am not persuaded on the evidence that the payments made to the applicant by the respondent were, in all the circumstances of the case, unfair or inadequate, and therefore I am not persuaded that the applicant has suffered a loss that is compensable by order of this Commission. 33. In view of my findings and conclusions, I consider that the appropriate remedy to provide in the present circumstances is a declaration that the applicant was unfairly dismissed by the respondent from his position as a factory hand on or about 4 August 2000. 2001 WAIRC 02530