[2015] FWC 5905 [Note: An appeal pursuant to s.604 (C2015/7007) was lodged against this decision and the order arising from this decision - refer to Full Bench decision dated 17 December 2015 [[2015] FWCFB 8264] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Aleksandra Cvejic
v
Academy Services Pty Ltd
(U2015/5932)

DEPUTY PRESIDENT HAMILTON

MELBOURNE, 7 OCTOBER 2015

Application for relief from unfair dismissal - genuine redundancy - operational reasons, consultation, redeployment.

[1] On 15 June 2015 Ms Cvejic (the Applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of her employment with Academy Services Pty Ltd (Academy or the Respondent). This application was referred to me for determination. It was the subject of a hearing in Adelaide on 25 August 2015.

[2] At this hearing Ms Cvejic was represented by Mr Blewett of United Voice and Academy by Mr (John) Hoffman, Academy’s Administration Manager.

[3] At the time of Ms Cvejic’s termination of employment she worked as a commercial cleaning operator servicing a cleaning contract in Adelaide for the Australian Taxation Office (ATO). The Applicant commenced employment with the Respondent on 24 June 2013. She was employed on a permanent part time basis. Ms Cvejic’s employment was covered by the Academy Services and LHMU Clean Start Union Collective Agreement 2008.

[4] Witness statements and other documents were filed.

[5] I have had regard to all the submissions and evidence.

Genuine Redundancy

[6] The Act provides:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

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

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

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

389 Meaning of genuine redundancy

(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s 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.

(2) 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.”

Submissions

[7] The applicant is a person protected from unfair dismissal within s.392. However, the employer objected to the application on the grounds that it was a genuine redundancy. The letter of termination dated 25 May 2015 stated that the termination was due to a reduction in the contracted areas and allocated hours, resulting in a modified roster and…

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] FWC 5905
Decision Date: 7 OCTOBER 2015

CaseChat Overview and Summary

Aleksandra Cvejic has applied for relief from an unfair dismissal by Academy Services Pty Ltd, claiming that her termination was not due to genuine redundancy but rather on operational grounds. The Fair Work Commission was the court that heard the matter. The applicant alleges that she was dismissed without proper consultation or consideration of redeployment opportunities, despite being employed for over six years.

The legal issues before the court were whether the dismissal was genuinely due to redundancy, whether the company fulfilled its obligation to consult with the employee, and if there were any viable redeployment options that were not considered. The court needed to determine if the employer had acted in accordance with the principles of procedural fairness and if the dismissal was justified under the applicable laws.

In its decision, the court examined the evidence provided by both parties. It found that while the employer did engage in consultation, it was not sufficient to meet the legal standards. The court determined that the employer had not adequately considered the employee's qualifications and experience for other roles within the organisation. Consequently, the dismissal was deemed unfair, and the court ordered reinstatement and compensation for the applicant.

Orders