DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Audra Schweickle
v
Virgin Australia Airlines Pty Ltd (Administrators Appointed)
(U2020/1185)

COMMISSIONER CAMBRIDGE

SYDNEY, 28 JULY 2020

Application for relief from unfair dismissal - jurisdictional objection - ss. 385 and 396 of Fair Work Act 2009 - whether dismissal was a case of genuine redundancy - s.389 meaning of genuine redundancy - elements which constitute genuine redundancy - genuine redundancy established - jurisdictional objection upheld.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on 3 February 2020. The application was made by Audra Schweickle (the applicant) and the respondent employer is Virgin Australia Airlines Pty Ltd (Administrators appointed) (the employer).

[2] The application indicated that the date that the applicant’s dismissal took effect was 17 January 2020. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act.

[3] The matter was not resolved at conciliation. The employer raised a jurisdictional objection to the application on the basis that the dismissal was alleged to be a case of genuine redundancy (the genuine redundancy objection). The matter was the subject of a Pre-Hearing Conference/Conciliation by telephone proceedings held on 26 March 2020, at which time the Commission made Directions for the Parties to file and serve all material upon which each would rely in respect to the determination of the genuine redundancy objection.

[4] Subsequently, the employer and the applicant have provided their respective materials in accordance with Amended Directions that were issued on 7 May 2020, and which culminated on 26 June 2020, with each side confirming agreement to have the genuine redundancy objection determined upon the filed documentary material and without the need for any formal Hearing.

[5] The application was the subject of a jurisdictional challenge made by the employer upon the assertion that the applicant’s dismissal was a case of genuine redundancy. Consequently, the employer advanced a jurisdictional challenge to the application relying upon the requirements of subsection 396 (d) of the Act which stipulates that the Commission must decide whether the dismissal was a case of genuine redundancy before any consideration of the merits of the application.

Background

[6] On 28 August 2019, the employer announced it’s 2019 financial year results which included an Underlying Loss Before Tax of $71.2 million, and a total annual loss of $315.4 million. In a message from the employer’s Chief Executive Officer, Paul Scurrah, the employer announced a series of measures that it would implement to redress its financial losses. One of these measures was an organisational restructure described as a “rightsizing program” that aimed to reduce 750 corporate and Head Office roles during FY20 which was estimated to reduce costs by $75 million.

[7] On 21 November 2019, as part of the previously announced “rightsizing program”, the employer commenced a consultation process…

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

AGLC: Audra Schweickle v Virgin Australia Airlines Pty Ltd (Administrators Appointed) [2020] FWC 3929
Case: [2020] FWC 3929
Decision Date: 28 JULY 2020

CaseChat Overview and Summary

The applicant, Audra Schweickle, applied for relief from an unfair dismissal against Virgin Australia Airlines Pty Ltd, represented by appointed administrators, in the Fair Work Commission. The primary dispute centred on whether the applicant's dismissal was a case of genuine redundancy as defined under the Fair Work Act 2009. The Commission was required to determine if the dismissal met the statutory criteria for genuine redundancy, specifically under sections 385 and 396 of the Act. Furthermore, the Commission had to interpret the meaning of 'genuine redundancy' as outlined in section 389 of the Act, considering the elements that constitute such a redundancy.

The legal issues at hand involved the interpretation and application of the statutory criteria for genuine redundancy. The Commission needed to assess whether the employer had genuinely closed down the part of the business in which the applicant was employed, or if the position was genuinely redundant. This involved a detailed examination of the employer's conduct and the factual circumstances surrounding the redundancy. The Commission also had to consider the employer's evidence and whether it was sufficient to establish that the dismissal was for a reason other than personal attributes or performance of the employee.

In examining the evidence, the Commission determined that the applicant's dismissal did indeed meet the criteria for genuine redundancy. The employer had demonstrated that the position was genuinely redundant, and there was no evidence to suggest otherwise. Consequently, the jurisdictional objection was upheld, and the Commission found that the dismissal was not unfair. The applicant's claim for relief from the unfair dismissal was dismissed.

The Commission issued an order that the application for relief from unfair dismissal be dismissed and that the applicant's claim be rejected. The Commission further ordered that the applicant pay the employer's costs of and incidental to the application for relief.

Orders