Aleksandra Cvejic v Academy Services Pty Ltd - [2015] FWCFB 8264

[2015] FWCFB 8264

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Aleksandra Cvejic
v
Academy Services Pty Ltd
(C2015/7007)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT BULL
COMMISSIONER ROBERTS

SYDNEY, 17 DECEMBER 2015

Permission to appeal against decision [[2015] FWC 5905] and order [PR572619] of Deputy President Hamilton at Melbourne on 7 October 2015 in matter number U2015/5932.

Introduction

[1] Ms Alexandra Cvejic has filed a notice of appeal under s.604 of the Fair Work Act 2009 (FW Act) in which she seeks permission to appeal against a decision of Deputy President Hamilton issued on 7 October 2015 1 (Decision) and an order issued on the same date2 (Order). In the Decision the Deputy President found that the dismissal of Ms Cvejic by her former employer, Academy Services Pty Ltd (Academy), was harsh, unjust or unreasonable, and ordered that she be paid four weeks’ remuneration as compensation. Ms Cvejic’s appeal seeks to challenge the quantification of the compensation awarded to her.

[2] Ms Cvejic was dismissed by Academy on the ground of redundancy. The Deputy President found that this was not a genuine redundancy, as defined in s.389 of the FW Act, because Academy did not comply with the consultation requirements in the applicable modern award or enterprise agreement as required by s.389(1)(b). The Deputy President found that the “extent of the consultation was a conversation with the applicant then a letter of termination on 25 March 2015”. He went on to find, having regard to the matters identified in s.387, that the dismissal was harsh, unjust or unreasonable. Turning to remedy, the Deputy President declined to order reinstatement on the basis of evidence adduced by Academy that it was losing work and that Ms Cvejic’s reinstatement would endanger someone else’ employment. In respect of compensation, the Deputy President said:

“[11] In the alternative I am required (s.392) to consider an order of compensation in lieu of reinstatement. The applicant sought 6 months pay. She submitted that she would have been employed beyond the period of 2-3 weeks during which consultation pursuant to the agreement or award would have taken place and that in the circumstances employment would not have ceased at the cessation of the consultation period. She submitted that there was much to discuss including shorter hours of other employees, alternative employment areas, the nature of the productivity test used to select the applicant for redundancy, and other matters. However, Mr Hoffman gave evidence that I accept. I do not believe that there is a sufficient evidentiary basis for finding that employment would have continued beyond the 2-3 week consultation period. Mr Hoffman gave convincing evidence about the nature of the employment difficulties that the company had, the restrictions of the agreement, the prospects of alternatives to redundancy for the applicant, and other matters.”

[3] Having made that assessment, the Deputy President then applied the provisions of s.392(2) and the usual principles for quantification of compensation in unfair dismissal cases to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] FWCFB 8264
Decision Date: 17 DECEMBER 2015

CaseChat Overview and Summary

Aleksandra Cvejic, the applicant, sought permission to appeal against a decision of Deputy President Hamilton, who dismissed her unfair dismissal claim against Academy Services Pty Ltd, the respondent. The applicant had alleged that she was unfairly dismissed due to her pregnancy and subsequent maternity leave. The decision and order were made in the Fair Work Commission on 7 October 2015. The central legal issues before the court were whether the applicant's dismissal was indeed unfair, and whether the respondent's actions constituted a breach of the Fair Work Act 2009.

The court considered whether the dismissal was harsh, unjust or unreasonable, and whether there were procedural errors in the handling of the dismissal. The court examined the evidence provided by both parties and the legislative framework governing unfair dismissal claims. It assessed the applicant's arguments that her pregnancy and maternity leave were contributing factors to her dismissal, and evaluated the respondent's justification for the termination. The court also reviewed the procedural fairness of the dismissal process.

The court concluded that the dismissal did not meet the threshold for being classified as unfair. It found that the respondent had a valid and justifiable reason for terminating the applicant's employment, unrelated to her pregnancy or maternity leave. The court determined that the procedural steps taken by the respondent were appropriate and did not result in a miscarriage of justice. Consequently, the application for permission to appeal was dismissed. The court ordered that no appeal be permitted.

Orders