DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Darren Williamson
v
Tilling Timber Pty Ltd
(U2020/2254)

Application for relief from unfair dismissal.

[1] On 27 February 2020, Mr Darren Williamson made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Tilling Timber Pty Ltd (Tilling Timber). Tilling Timber submit the dismissal was a genuine redundancy, therefore Mr Williamson is not protected by s.390 of the FW Act. Mr Williamson disputes his dismissal was a genuine redundancy and is seeking compensation and damages.

When can the Commission order a remedy for unfair dismissal?

[2] Section 390 of the FW Act provides that the Commission may order a remedy if:

(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and

(b) the Applicant has been unfairly dismissed.

[3] Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed. In this case the Respondent submits the Applicant is not protected due to the dismissal being a genuine redundancy.

When is a person protected from unfair dismissal?

[4] Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

When has a person been unfairly dismissed?

[5] Section 385 of the FW Act provides that a person has been unfairly dismissed if the Commission is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Background

[6] The uncontested factual background to the matter is as follows:

•  Mr Williamson was first employed on 18 April 2012 in the role of factory hand, and during his employment he was promoted a number of times;

•  Mr Williamson was a full-time employee;

•  Mr Williamson was promoted to the position of Team Leader of the afternoon shift in 2016 and held that position at the time of his dismissal;

•  Mr Williamson’s employment was terminated on 7 February 2020;

•  Tilling Timber is not a small business;

•  Mr Williamson satisfied the minimum employment period, met the salary threshold and was covered by a modern industry Award - The Timber Industry Award 2010; and

•  Mr Williamson filed his application on 27 February 2020, which is within the statutory time limit.

The hearing

[7] There being contested facts involved, a hearing was scheduled for 1 June 2020.

Permission to appear

[8] Both the Applicant and the Respondent sought to be represented before the Commission by a lawyer. Both parties were granted leave to be represented pursuant to s.596(2) (a)(b) and (c) of the Act.

Witnesses

[9] Mr Williamson gave evidence on his own behalf and called Mr Glen Phil Ross, former employee of Tilling Timber, to give evidence.

[10] The following witnesses gave evidence on behalf of the Respondent:

•  Ms Melissa O’Brien, HR Manager.

•  Mr Adrian Robertson, State Manager.

Submissions

[11] Mr Williamson submits that his performance was never brought into question and he was a high performing and proficient employee in terms of all factory duties, including as a forklift driver and in the handling of any equipment in the factory.

[12] On 31 January 2020, Mr Williamson attended a surgeon relating to an aggravation of a hip injury sustained prior to commencing with Tilling Timber. The hip injury had not allegedly affected his performance. Mr Tilling booked himself in for surgery for 25 February 2020 and advised his employer he would require time off work.

[13] On 7 February 2020, Mr Williamson was advised that his role was made redundant and that no other role was available for redeployment.

[14] Mr Williamson submits the redundancy was not genuine because one of the Engineer Wood Products Manager’s roster has been altered so that he replaced Mr Williamson on the afternoon shift.

[15] Mr Williamson submits there were other roles in the business for which he was suitable, and no mention of redundancy occurred until he advised his employer of his hip surgery. 1

[16] Mr Williamson submits there were no discussions of dismissal or changing operational requirements concerning his role. He submits there were discussions concerning the movement of 2 day operators to the afternoon shift. 2

[17] Mr Williamson submits that 2 weeks prior to his dismissal, a forklift driver and 2 yard hands were employed, another yard hand was employed 1 week prior to his dismissal and another yard hand was employed a few days before his dismissal. Further he submits he understood there were vacancies for a hundegger operator and other vacancies were advertised prior to his dismissal. 3

[18] Tilling Timber submits there was a significant downturn in the construction industry which had an impact on sales and customer orders.

[19] Further, it submits Mr Williamson’s employment was made redundant together with a number of other positions to ensure the viability of the business.

[20] On 7 February 2020, Mr Williamson was advised that his role was made redundant and was paid 4 weeks’ in lieu of notice. 4 In addition, Mr Williamson was paid 13 weeks of severance pay together with his outstanding leave entitlements.

[21] In response to Mr Williamson’s contentions, Tilling Timber agrees that his performance was not called into question and his impending surgery was not a factor in the decision to dismiss his employment. Further, Tilling Timber submits that Mr Williamson has had a number of surgeries, which were supported by time off and access to the company’s salary continuance program.

[22] The submission that Mr Williamson was replaced by the Engineer Wood Product Manager on the afternoon shift is disputed and Tilling Timber submit the manager held the position and the responsibilities of the role since 1 July 2017. However, it submits the Manager occasionally works hybrid shifts to help out with other duties for short periods.

[23] Tilling Timber submit that at the time of his redundancy there were no open positions for him without terminating another employee which was not an option. 5

Threshold issue - was the dismissal a case of genuine redundancy?

[24] The threshold issue is whether the dismissal was a genuine redundancy, if it was, then it cannot be an unfair dismissal. The relevant provisions of the Act are:

[25] Under s.389 (1) of the FW Act, a person’s dismissal was a case of genuine redundancy if:

(a) the 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.

Operational reasons

[26] Tilling Timber submit there was a significant downturn in the timber industry and an average in drop in sales more than 20% YTD. This drop-in sales had impacted orders, logistical systems and processes. These impacts affected the need for staff to manage processes. In support of their submissions, Tilling Timber provided witness evidence, a list of redundancies and roles not back filled and tables showing sales performance.

[27] Ms O’Brien gave evidence that Tilling Timber supplies timber to the housing building market and its own sales figures demonstrate a drop leading up to the September quarter and for the December quarter. In November 2019, Tilling Timber took steps to identify payroll savings. In November 2019, 12 positions were made redundant comprising 4 in head office, 4 in New South Wales, 2 in Queensland and 2 in Victoria. In addition to the 12 redundancies 5 positions were lost through resignation and were not backfilled. 6

[28] On 30 January 2020, Ms O’Brien provided to the State Manager information concerning the payroll savings if the afternoon shift team leader was made redundant.

[29] Ms O’Brien gave evidence that the business became too top heavy with 5-6 yard employees per team leader compared to 9 employees per team leader in June 2018. She states it was determined that the manager would perform the duties of the team leader including his own. She states that 3 team leader roles were made redundant across the country. 7

[30] Ms O’Brien gave evidence that the Manager worked hybrid hours (mix of day and afternoon shift) when required to cover the absence of other managers, and to conduct training of a new system for the business which occurred from September 2019 to February 2020.

[31] Ms O’Brien also gave evidence that over January and February 2020 Tilling Timber were still recruiting to backfill yard roles that became vacant due to resignation. 8 Tilling Timber provided evidence of Seek advertisements that showed recruitment over the period January to February and evidence where candidates to fill these roles were sent for pre-employment medical examinations.

[32] Despite the evidence of recruitment processes and the decision to make Mr Williamson redundant, Ms O’Brien disputes the decisions were made simultaneously. 9

[33] Mr Adrian Robertson, the Vic/Tas Manager gave evidence that he reviewed the financials on his return from annual leave and determined that it was unnecessary to have a Team Leader and Manager on the afternoon shift given the headcount of 11 in the yard. 10

[34] Both witnesses for Tilling Timber admitted that Mr Williamson had the skills to perform the roles advertised and filled, however, Mr Robertson admitted he did not consider asking Mr Williamson if he would take the role as it would involve a lower paying role.

[35] I am satisfied that there were operational reasons for the decision to make redundant the team leader position. By distributing the responsibilities to the Manager with forklift driving duties to the other forklift drivers the decision resulted in a redundancy of the Team Leader role.

[36] I am also satisfied that the evidence shows that no alternative positions were considered or offered to Mr Williamson before the decision to make his position redundant. In an exchange between myself and Mr Robertson he admitted to simply comparing sales figures with numbers on the ground and acknowledged that there was a recruitment process on foot at the same time.

[37] At the hearing, Mr Robertson said “I didn’t think Darren would take a lesser role…it’s a big step down”. Furthermore, when asked whether after 8 years of employing Mr Williamson, he considered having a discussion with him about the prospect of his position being made redundant, Mr Robertson said “I could have and that’s probably part of the reason why we’ve offered up employment again to him is because the consulting thing probably wasn’t as strong as what we should have done, and we should’ve sort of given him a bit more duty of care as far as the thought process [went]”. 11

[38] I also observe that the evidence of Tilling Timber contained discrepancies. Ms O’Brien gave evidence that 3 Team Leaders were made redundant, yet the Headcount Reductions document accounts for 2, one in November 2019 based in Queensland and one in February 2020 (Mr Williamson’s role). The graphs concerning sales relied on by Tilling Timber to support the decision to make Mr Williamson redundant is not so compelling as the graphs covered the period July – December 2019, and evidence of active recruitment clouds the evidence substantiating the redundancy of Mr Williamson in February 2020. The figures in December show a drop in sales of just over 20%, yet no figures for January 2020 were tendered. However, the position of Team Leader in Victoria ceased to exist.

[39] I do accept on balance of the evidence that the reason for the termination of Mr Williamson’s employment was a cost saving measure and the job of Team leader is not being performed by anyone, while the duties had been redistributed.

[40] The Full Bench in Ulan Coal Mines Limited v Henry Jon Howarth and others  12 considered the expression of job in the context of duties in a redundancy. I adopt the reasoning of the Full Bench, which remains an authority.

[17] It is noted that the reference in the statutory expression is to a person’s “job” no longer being required to be performed. As Ryan J observed in Jones v Department of Energy and Minerals (1995) 60 IR 304 a job involves “a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employees’ organisation, to a particular employee” (at p. 308). His Honour in that case considered a set of circumstances where an employer might rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly-created positions. In these circumstances, it was said that:

“What is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the re-organisation, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position becomes redundant…” (at p.308)

This does not mean that if any aspect of the employee’s duties is still to be performed by somebody, he or she cannot be redundant (see Dibb v Commissioner of Taxation (2004) FCR 388 at 404-405). The examples given in the Explanatory Memorandum illustrate circumstances where tasks and duties of a particular employee continue to be performed by other employees but nevertheless the “job” of that employee no longer exists.

[18] In Kekeris v A. Hartrodt Australia Pty Ltd [2010] FWA 674 Hamberger SDP considered whether a dismissal resulting from the restructure of a supervisory team was a case of genuine redundancy. As a result of the restructure, four supervisory team leader positions were replaced by three team leader positions. The Senior Deputy President said:

“When one looks at the specific duties performed by the applicant prior to her termination they have much in common with those of two of the new positions in the new structure. The test is not however whether the duties survive. Paragraph 1548 of the explanatory memorandum makes clear that it can still be a ‘genuine redundancy’ where the duties of a previous job persist but are redistributed to other positions. The test is whether the job previously performed by the applicant still exists.” (at par [27])

[41] I am satisfied that the position is no longer required to be performed by anyone for operational reasons. I am satisfied that s.389 (1)(a) of the FW Act has been met.

Obligations to consult

[42] Clause 9 of the Timber Industry Award 2010 provides as follows:

9.1 Consultation regarding major workplace change

(a) Employer to notify

(i) Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must notify the employees who may be affected by the proposed changes and their representatives, if any.

(ii) Significant effects include termination of employment; major changes in the composition, operation or size of the employer’s workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations; and the restructuring of jobs. Provided that where this award makes provision for alteration of any of these matters an alteration is deemed not to have significant effect

(b) Employer to discuss change

(i) The employer must discuss with the employees affected and their representatives, if any, the introduction of the changes referred to in clause 9.1(a), the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees and must give prompt consideration to matters raised by the employees and/or their representatives in relation to the changes.

(ii) The discussions must commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in clause 9.1(a).

(iii) For the purposes of such discussion, the employer must provide in writing to the employees concerned and their representatives, if any, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees provided that no employer is required to disclose confidential information the disclosure of which would be contrary to the employer’s interests.

[43] The Award requires the employer to notify employees who may be affected by a definite decision that is likely to have significant effect by the proposed changes. This clause anticipates that the employer will consult with employees likely to be affected prior to the implementation of the decision. The purpose of consultation is that the employer’s decision may be influenced through consultation. Significant effects include a termination of employment. Further clause 9.1 (b) (i) to (iii) concerns process of consultation.

[44] Tilling Timber relies on the Tool Box meeting held on 22 November 2019 as consultation in satisfaction of clause 9 of the Timber Industry Award 2010. The evidence of all of the witnesses confirmed the discussion related to the change in shift start times to meet customer demand and the need to transfer 2 employees from day shift to afternoon shift, otherwise redundancies would occur among the day shift group. I am satisfied that on balance, the discussion about redundancies was a general report from management and nothing more. 13

[45] There was no evidence that Tilling Timber satisfied the obligation to consult as required by the Award. Further, there was no consultation with Mr Williamson regarding the decision to make redundant the Team Leader role prior to the implementation of the decision. 14

[46] I am not satisfied that Mr Williamson was provided with a genuine opportunity to influence Tilling Timber to consider alternatives which would avert the adverse effect of his position being made redundant. Consequently, I am not satisfied that Tilling Timber satisfied s.389(1) (b) of the FW Act.

Was redeployment reasonable?

[47] Section 389 (2) of the FW Act provides:

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:

(a) The employer’s enterprise; or

(b) The enterprise of an associated entity of the employer.

[48] The Full Bench in Ulan Coal Mines Limited v Honeysett and others  15 set out how Section 389(2) should be approached:

“[26] First, s.389(2) must be seen in its full context. It only applies when there has been a dismissal. An employee seeking a remedy for unfair dismissal cannot succeed if the dismissal was a genuine redundancy. In other words, if the dismissal is a case of genuine redundancy the employer has a complete defence to the application. Section 389(2) places a limitation on the employer’s capacity to mount such a defence. The defence is not available if it would have been reasonable to redeploy the employee. The exclusion poses a hypothetical question which must be answered by reference to all of the relevant circumstances.

[27] Secondly, it is implicit in the terms of s.389(2)(b) that it might be reasonable for an employee dismissed by one employer to be redeployed within the establishment of another employer which is an entity associated with the first employer. It follows that an employer cannot succeed in a submission that redeployment would not have been reasonable merely because it would have involved redeployment to an associated entity. Whether such redeployment would have been reasonable will depend on the circumstances. The degree of managerial integration between the different entities is likely to be a relevant consideration.

[28] Thirdly, the question posed by s.389(2), whether redeployment would have been reasonable, is to be applied at the time of the dismissal. If an employee dismissed for redundancy obtains employment within an associated entity of the employer some time after the termination, that fact may be relevant in deciding whether redeployment would have been reasonable. But it is not determinative. The question remains whether redeployment within the employer’s enterprise or the enterprise of an associated entity would have been reasonable at the time of dismissal. In answering that question a number of matters are capable of being relevant. They include the nature of any available position, the qualifications required to perform the job, the employee’s skills, qualifications and experience, the location of the job in relation to the employee’s residence and the remuneration which is offered.”

[49] The evidence of Tilling Timber was that Mr Williamson could have performed any of the roles in the yard, and it follows, any of the roles advertised in Victoria that were filled over the January to March 2020 period. Mr Williamson gave evidence that he requested leave for hip surgery, and Tilling Timber gave evidence that the hip surgery was not a consideration in their decision to terminate Mr Williamson’s employment. I am satisfied that Mr Tilling had the skills and capacity to perform the role of any position in the yard. I accept that a position in the yard was not equivalent to the role of Team Leader, but an alternative role that was available based on Tilling Timber’s hiring practices was an option other than dismissal. Had Mr Williamson been offered one of those lesser roles, and not accepted the termination would have satisfied that the dismissal was a genuine redundancy.

[50] Having considered the evidence against the requirements of all of s.389 (1) and (2) of the FW Act I am not satisfied that the dismissal of Mr Williamson was a genuine redundancy.

Was the termination unfair?

[51] Section 387 of the FW Act requires me to consider the following matters:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:

(a) 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

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) 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

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) 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

(g) 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

(h) any other matters that FWA considers relevant.

Was there a valid reason? (s.387(a))

[52] The termination was a redundancy but not a genuine redundancy.

[53] The Full Bench in UES (Int’l) Pty Ltd v Ball  16 looked at the issue of redundancy and valid reason for dismissal:

“[42] As we have already indicated, in our view the reasons for the dismissal of Mr Ball by UES were not related to his capacity or conduct (including its effect on the safety and welfare of other employees). Accordingly, there cannot have been and was not a valid reason for his dismissal related to his capacity or conduct (including its effect on the safety and welfare of other employees). In the circumstances of this case we regard it as a neutral matter with respect to our consideration as to whether Mr Ball’s dismissal was harsh, unjust or unreasonable.”

[54] In this matter I find Mr Williamson was not dismissed for reasons related to his capacity or conduct. However, it is not a genuine redundancy due to the failure to consult and to redeploy.
[55] As there is no valid reason for the termination related to capacity or conduct, in the circumstances of this case it is a neutral matter with respect to my consideration whether the dismissal was harsh, unjust or unreasonable

Notification and opportunity to respond (ss.387(b) and (c))

[56] The matters in Section 387(b) and (c) of the FW Act deal with whether there was procedural fairness in respect of a reason for dismissal related to the Applicant’s capacity or conduct. Mr Williamson was not notified of his termination until the day of the redundancy, therefore he had no opportunity to respond. However, given the reason for the dismissal, I consider this a neutral matter with respect to my consideration whether the dismissal is harsh, unjust or unreasonable with respect to opportunity to respond relating to conduct or capacity.

Support person (s.387(d))

[57] Tilling Timber did not advise Mr Williamson that he could have a support person at the meeting where he was advised of his redundancy. However, Tilling Timber did not prevent a support person being present. Mr Williamson was not aware that the meeting on 7 February 2020 was to be for the purpose of his termination of employment, and he was not given an opportunity to consider or ask for a support person. I regard this consideration in Mr Williamson’s favour with respect to whether the dismissal was harsh, unjust or unreasonable.

Unsatisfactory performance (s.387(e))

[58] The dismissal did not relate to unsatisfactory performance, so this matter is not relevant to my consideration. I regard this a neutral matter in terms of whether the dismissals was harsh, unjust or unreasonable.

Size of the enterprise and human resource management (s.387(f) and (g))

[59] Tilling Timber is a medium sized organisation of more than 150 employees and Ms O’Brien, who appeared, is the human resources manager. The requirement to consult was understood by Ms O’Brien. Her view, that the Tool Box meeting was consultation, is flawed and not reasonable. It is widely accepted that a termination due to redundancy cannot be fair in the absence of consultation about the reasons, an opportunity to consider alternatives and consider mitigation measures. Neither the size of the business or the capacity of the HR Manager reduce the consideration of fairness.

Other matters (s.387(h))

[60] Tilling Timber failed to consult with Mr Williamson as required by the consultation clause in the Award. I am also satisfied that it would have been reasonable to offer redeployment.

[61] In the circumstances of this case, these two matters favour a conclusion that the termination was unjust and unreasonable.

[62] Despite some discrepancies in the evidence, there was a sound and defensible reason by the employer to cut operating costs and duplication in the supervision of the yard personnel because of the reduced headcount. This consideration goes against a finding that the termination was unjust and unreasonable.

Conclusion regarding harsh, unjust or unreasonable

[63] Taking into account the matters referred to above, I am satisfied that the termination of Mr Williamson by Tilling Timber was unjust and unreasonable. The failure to consult and redeploy was unreasonable and unjust, in spite of there being a valid reason for the dismissal.

Remedy

[64] Mr Williamson is not seeking reinstatement. He submits the trust and relationship has broken down. Tilling Timber state that reinstatement is possible.

[65] Reinstatement of Mr Williamson to the role immediately before his dismissal is not appropriate as the role no longer exists. Another lesser role is also inappropriate given the circumstances of this case. Tilling Timber did not consider a lesser role before making Mr Williamson redundant, and a lesser role was only offered during conciliation. The lapse in time from his unexpected termination and the offer of alternative employment has caused Mr Williamson to doubt that the offer was genuine, and he further raised concerns about the loss of trust in the relationship. Failure to consider an alternative role and the recruitment of new employees in place of considering any of the roles for Williamson sways me from an order for reinstatement. In the circumstances, I consider that an order for compensation would be appropriate.

[66] In considering compensation I am required by Section 392(2) of the FW Act to consider the following:

“(2) In determining an amount for the purposes of an order under subsection (1), FWA must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that FWA considers relevant.”

[67] No submissions were put forward by Tilling Timber regarding the impact of any order on the viability of the enterprise. I have taken into account the size of the enterprise and the evidence that there had been redundancies in November, and that a number of positions were not backfilled while other positions in the yard were backfilled. While there had been an evident impact from a drop in sales, the effect on business was not enough to qualify for Job Keeper. A drop in sales of just over 20% resulted in a drop in number of employees nationally only marginally, and no difference in the number of employees in the yard of the Victorian branch.

[68] The length of service with Tilling Timber was approximately 8 years. This period is considerable and therefore any reduction in compensation would not be appropriate for this reason. The significant length of service is a factor that Mr Williamson would have had a longer period of continuing employment but for the termination.

[69] The evidence of Mr Williamson that he made efforts to apply for some 20 jobs was not supported other than in witness evidence and this was not contested. In calculating compensation I therefore make a deduction of 20% on this account. Mr Williamson has not found additional alternative employment but has been in receipt of Jobseeker.

[70] I also make no deduction for misconduct as this consideration is not relevant.

[71] Mr Williamson had made arrangements for hip surgery and because of this he would have been unavailable to work for a period of 3 weeks. I make a deduction of 3 weeks of absence.

[72] Mr Williamson received a period of 4 weeks’ notice and 13 weeks’ of severance pay.

[73] Had Mr Williamson not been dismissed there is no reason he would not have been employed for a further period of twelve months, albeit in a lower paid position had he accepted it. Had Tilling Timber properly consulted Mr Williamson, he would have had a further period of a couple of weeks at least in his position as Team Leader. I make provision for the higher rate of pay for this period of consultation.

[74] In making this assessment, I have taken into account the sales evidence and drop in numbers in the yard since 2018, the period of Mr Williamson’s employment, the likelihood of redeployment, the lack of any issues concerning conduct or performance and Mr Williamson’s planned absence from employment for surgery.

[75] Of the 52 weeks of likely continued employment, Mr Williamson received 13 weeks severance pay, 4 weeks’ notice and had 3 weeks of authorised personal leave, leaving 32 weeks.

[76] I have applied a contingency of 50% as it is unclear whether Mr Williamson would have accepted an alternative lesser role. It was unclear from the evidence whether the surgery would have permitted Mr Williamson to return to work after the 3 weeks of leave, and in the lesser role which is physical compared to the team leader role which is largely office based.

[77] I also include a contingency for the drop-in work due to reduced sales and the impact of the COVID-19 pandemic of 25%. This leaves a period of 12 weeks.

[78] A further deduction of 20% for lack of evidence of effort made by Mr Williamson to find alternative work, leaves a period of 9.6 weeks. I make no deduction for receipt of job seeker payments.

[79] Had Tilling Timber conducted a period of consultation, Mr Williamson would have had the benefit of at least 2 weeks at his Team Leader rate. I have added the difference of 2 weeks between the yard hand and Team Leader salary amounting to $572.28 to the compensation figure.

[80] I have calculated a compensation figure of $10,492.63 gross. This figure is to be paid to Mr Williamson within 14 days less applicable tax.

[81] Orders will be issued concurrently with this decision requiring the payment of this compensation less appropriate taxation within 14 days.

COMMISSIONER

Appearances:

Ms A. Dickens for the Applicant
Mr M. Iskandar for the Respondent

Hearing details:

2020
Melbourne (by telephone)
1 June

Printed by authority of the Commonwealth Government Printer

<PR721823>

 1   Applicant’s Form F2 at Q3.2 and Applicant’s outline of Argument at Q6d.

 2   Applicant’s outline of argument at Q6d.

 3   Ibid.

 4   Respondent’s Form F3 at Q3.1.

 5   Ibid at Q3.2.

 6   Respondent’s document list attachment 2 - Headcount reductions.

 7   Transcript at 15:54.

 8   Transcript at 54:30.

 9   Transcript at 59:07.

 10   Transcript at 1:05:22.

 11   Transcript at 1:30:34 – 1:31:36.

 12   [2010] FWAFB 3488, paragraphs 17-18.

 13   Transcript at 25:11, 52:11, 1:08:07, 1:15:15, 1:16:20, 1:19:20, 1:43:05.

 14   Transcript at 1:20:59, 1:30:39, 1:41:57.

 15   [2010] FWAFB 7578 at paragraphs 26-28.

 16   [2012] FWAFB 5241.