Alexander Short v Immutable Pty Ltd - [2023] FWC 1201

[2023] FWC 1201

FAIR WORK COMMISSION

DECISION
Fair Work Act 2009
s.394—Unfair dismissal
Alexander Short
v
Immutable Pty Ltd
(U2022/8463)
James Wakeham
v
Immutable Pty Ltd
(U2022/8534)

DEPUTY PRESIDENT DEAN

CANBERRA, 7 JULY 2023

Application for an unfair dismissal remedy – whether genuine redundancy – applications dismissed.
[1] This decision concerns two applications made under s.394 of the Fair Work Act 2009 by Mr Alexander Short and Mr James Wakeham (together, Applicants), alleging that they were unfairly dismissed from their employment with Immutable Pty Ltd (Immutable).
[2] Mr Short and Mr Wakeham were made redundant on 27 July 2022 and 29 July 2022 respectively. Mr Short’s application was not lodged within the 21 day time limit prescribed by the Act. I heard that matter on 24 October 2022 and subsequently issued a decision and order granting an extension of time for Mr Short to file his application pursuant to s.394(2)(b)[1].

[3]       The two applications were heard together at the request of the parties by way of a video hearing on 7 and 8 February 2023. Final written submissions were filed on 27 March 2023.
[4]       At the hearing Ms Julia Lee of APESMA appeared for the Applicants. Ms L Hilly of Counsel appeared with permission for Immutable.
[5]       Immutable contends that the employment of the Applicants was brought to an end by reason of genuine redundancy within the meaning of s.389 of the Act, a contention that was disputed by the Applicants.

[6]       Before considering the merits of the applications, the Commission must first determine, by virtue of s.396 of the Act, the question of whether the dismissals were genuine redundancies.
[7]       The following persons gave oral and written evidence for the Applicants:
·     The Applicants
·     Mr Christoper Eickelman (Immutable’s former Sound Engineer and Audio Director)
·     Mr Mateja Simovic (APESMA’s Organiser)
·     Mr Daniel Serebro (Immutable’s former Senior Unity Developer)
·     Mr Morgan Little (Immutable’s former Technical Designer, Associate Producer and Producer)

[8]       The following persons gave oral and written evidence for Immutable:
·     Mr Justin Hulog (Chief Studio Officer)
·     Ms Katherine Rau (Chief People Officer)
·     Ms Jyllian Thibodeau (Senior Design Manager)

[9]       For the reasons set out below, I find that the Applicants’ dismissals were cases of genuine redundancy and as a result the Applicants were not unfairly dismissed.
Brief Background
[10]     Immutable was established in 2018 as Fuel Games Pty Ltd until the change of name in December 2020. It commenced as a technology startup with 7 employees and launched its first online game known as Gods Unchained (GU). Immutable says it is now a global blockchain company which has approximately 300 employees worldwide working under two core business ventures, Immutable Games Studio and Immutable X Platform.
[11]     Since 2018 Immutable attracted various capital investments which had significantly evolved the business focus towards the Immutable X Platform.
[12]     Mr Short commenced employment with Immutable in July 2018 in the role of Senior Unity Developer and Mr Wakeham commenced his role as a Games Designer…

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: [2023] FWC 1201
Decision Date: 7 JULY 2023

CaseChat Overview and Summary

Alexander Short and James Wakeham (the Applicants) brought separate applications for unfair dismissal against Immutable Pty Ltd (Immutable) under s.394 of the Fair Work Act 2009. They alleged they were unfairly dismissed on 27 July 2022 and 29 July 2022, respectively. Immutable argued that their dismissals were genuine redundancies under s.389 of the Act. The Applicants argued that Immutable had not demonstrated that their positions were no longer required, that they were covered by the Professional Employees Award 2020 or the Miscellaneous Award 2020, that Immutable failed to comply with the consultation obligations in the Awards, that Immutable had not demonstrated it genuinely considered whether any redeployment opportunities were available for them within its business, and that on the balance of probabilities it would have been reasonable in all the circumstances for them to be redeployed within Immutable’s business. The Deputy President found that the Applicants’ positions were no longer required because of changes in Immutable’s operational requirements. He was satisfied that Immutable no longer required the jobs performed by the Applicants to be performed because of changes in its operational requirements. Immutable’s decision to restructure and reduce its headcount by approximately 18 roles was communicated to the Applicants and the rest of the staff in an all-staff meeting. The Applicants were informed that they were required to advise whether they wished to apply for an alternative role the following day. The Deputy President found that the Applicants were not covered by either the Professional Employees Award 2020 or the Miscellaneous Award 2020, and that Immutable had complied with any obligation to consult under the Awards. The Deputy President found that it would not have been reasonable in all the circumstances for the Applicants to be redeployed within Immutable’s business. He was satisfied that Immutable engaged in the process of reviewing redeployment options for the Applicants. This involved the direct manager of the Applicants assessing their suitability for vacant roles and inviting the Applicants to review the full list of vacant positions with a view to expressing their interest in any of those positions. Both Applicants accepted in cross examination that there were no suitable roles available at that time. As a result, the Deputy President found that the Applicants’ employment came to an end for reasons of genuine redundancy within the meaning of s.389 of the Act. He found that the Applicants were not persons protected from unfair dismissal and dismissed the applications.

Orders