DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Aron Solway
v
Vision Blonde Pty Ltd
(U2020/4035)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 11 AUGUST 2020

Application for an unfair dismissal remedy – dismissal not a genuine redundancy – whether dismissal unfair – measure of compensation

[1] This decision concerns an application made by Mr Aron Solway for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Act). Mr Solway was employed as the creative director of Vision Blonde Pty Ltd (Vision Blonde), a hairdressing salon, from 9 October 2018 until his position was made redundant and his employment ended on 26 March 2020. Mr Solway contends that his dismissal was unfair and seeks compensation.

[2] Vision Blonde objected to the application on two jurisdictional grounds. First, it contended that Mr Solway’s employment was terminated in compliance with the Small Business Fair Dismissal Code (Code). Secondly, it submitted that his dismissal was a genuine redundancy for the purposes of s 389 of the Act. In the alternative, Vision Blonde contended that Mr Solway’s dismissal was not unfair.

[3] The matter was listed for hearing before me on 17 July 2020. Mr Solway gave evidence. Vision Blonde was represented by a lawyer, and led evidence from its co-directors, Ms Lauren Robertson-Larkin, who is also the salon manager, and Mr Sam Robertson-Larkin.

[4] The jurisdictional questions of whether Mr Solway’s dismissal complied with the Code or was a case of genuine redundancy are two of the four matters that s 396 of the Act requires the Commission to decide before considering the merits of an unfair dismissal application. I will record here my conclusions on the other two preliminary matters in s 396, neither of which was contentious. First, Mr Solway’s application was made within the 21-day period required by s 394(2) of the Act. Secondly, Mr Solway was a person protected from unfair dismissal, as he earned less than the high-income threshold and had undertaken the minimum period of employment (s 382).

[5] At the hearing, the company advised that it did not press its first jurisdictional objection. I am nevertheless required by s 396 to determine whether the dismissal was consistent with the Code. In its application to dismissals that are not summary dismissals, the Code requires that there be a valid reason for dismissal based on an employee’s ‘conduct or capacity’. The dismissal of an employee for reason of redundancy is not one that is based on conduct or capacity, but rather on the employer’s business or operational needs. It is well established that ‘redundancy’ is not a ‘valid reason’ related to a person’s capacity or conduct for the purpose of s 387(a) of the Act. Of course, that does not mean that redundancy cannot be a good and legitimate reason for dismissal. In the setting of s 387, where the reason for a dismissal is redundancy, this will be considered under s 387(h) - ‘any other matters the Commission considers relevant’. However,…

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: [2020] FWC 4233
Decision Date: 11 AUGUST 2020

CaseChat Overview and Summary

The parties involved in this case were Aron Solway, the applicant, and Vision Blonde Pty Ltd, the respondent. The dispute was about an application for an unfair dismissal remedy. The applicant, Aron Solway, sought compensation after being dismissed from his employment. He argued that the dismissal was not a genuine redundancy and was therefore unfair. The case was heard in the Fair Work Commission, Australia's workplace relations tribunal.

The legal issues the court had to decide were whether the dismissal was a genuine redundancy and whether the dismissal was unfair. The applicant argued that his dismissal was not a genuine redundancy, and therefore, the dismissal was unfair. The respondent, on the other hand, argued that the dismissal was a genuine redundancy and that the dismissal was fair. The court had to determine whether the applicant's dismissal was a genuine redundancy and whether the dismissal was unfair.

The court found that the dismissal was not a genuine redundancy. The court also found that the dismissal was unfair. The court found that the respondent had not taken reasonable steps to find alternative employment for the applicant. The court found that the dismissal was unfair because the respondent did not take reasonable steps to mitigate the impact of the dismissal on the applicant. The court awarded the applicant compensation for the unfair dismissal. The amount of compensation was determined based on the applicant's length of service and his salary at the time of dismissal.

The Fair Work Commission ordered that Vision Blonde Pty Ltd pay Aron Solway compensation for the unfair dismissal. The amount of compensation was determined to be equivalent to eight weeks' remuneration, calculated based on his salary at the time of dismissal. The decision highlights the importance of employers taking reasonable steps to mitigate the impact of dismissals on employees, particularly when it comes to genuine redundancy claims.

Orders