Amy Templeton v Bedlam Enterprise Pty Ltd T/A Cola Solar

[2015] FWC 6424

[2015] FWC 6424

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Amy Templeton
v
Bedlam Enterprise Pty Ltd T/A Cola Solar
(U2015/8922)

Danny Natoli
v
Bedlam Enterprise Pty Ltd T/A Cola Solar
(U2015/9169)

COMMISSIONER BISSETT DARWIN, 16 SEPTEMBER 2015

Application for relief from unfair dismissal - application for two matters to be heard together.

[1] The Commission has received an application for two unfair dismissal matters to be ‘joined’. The unfair dismissal applications are from Mr Danny Natoli and Ms Amy Templeton (the Applicants). Each was employed by Bedlam Enterprise Pty Ltd (the Respondent), each was terminated by reason of redundancy on the same date, each has filed an application for unfair dismissal and each have filed a supporting witness statement in the other’s application.

[2] The Applicants seek that the matters to be joined. The application for joinder is opposed by the Respondent.

[3] I do not understand from the application for joinder that the Applicants seek to have the applications heard as one, including with respect to the merits of the respective cases, but rather that the matters be heard together but separate considerations and decisions be made for each application.

[4] It is often the case the Commission will hear applications together where the factual circumstances leading to the termination of employment are the same – e.g. two workers are involved in a fight, the circumstances leading up to the fight are the same – but separate decisions are made and issued for each of the applicants. In such an arrangement it may be found that the dismissal was unfair for one applicant but not the other. This is not, however, a ‘joinder’ of applications but rather concurrent hearings of the matter such that each application is still considered alone.

[5] I have therefore considered if the applications should be heard concurrently but that separate decisions be issued with respect to each application.

[6] Both of the Applicants argue that their dismissal was not a case of genuine redundancy. It is apparent from the material filed by the Respondent that the same factual circumstances lead to the decision to make each of them redundant.

[7] The Respondent does not object to hearing the jurisdictional matter – that of whether the dismissals were a genuine redundancy – together but does object to hearing the merits of each case together. It makes this objection because it says the merits arguments are different.

[8] In dealing with an application for unfair dismissal where the employer argues that the dismissal was a case of genuine redundancy the jurisdiction matter (i.e. genuine redundancy) is heard at the same time as the merits of the claim of unfair dismissal. This is because the jurisdictional objection is, in essence, an answer to the claim. For this reason there will not be separate hearings - i.e. a hearing of the genuine redundancy objection and then, should it not succeed, a hearing on the merits.

[9] I have carefully considered the application for the matters to be heard together and, in particular, how the cases might be managed if they are heard together. I have decided that it will be more efficient to hear both applications concurrently. The applications are not being joined and there are no ‘co-applicants’. There remain two distinct and separate applications before the Commission. The circumstances surrounding the dismissal of each of the Applicants are intertwined and it will be an efficient use of time and resources to deal with the applications at the same time.

[10] Having decided to hear the applications together the parties should be aware that the matters will be managed during the hearing to ensure procedural fairness to all parties. Parties will be heard on how the matters should proceed at the commencement of the hearing.

[11] An amended notice of listing will be issued.

COMMISSIONER

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