REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Boyan Bizoev
v
NODE Energy Services Pty Ltd T/A NODE Energy Services
(U2021/5559)

DEPUTY PRESIDENT BOYCE

SYDNEY, 30 AUGUST 2021

Application for an unfair dismissal remedy – jurisdictional objection – genuine redundancy – application dismissed.

Introduction

[1] This Decision was made on an ex-tempore basis on transcript. In publishing these Reasons, I have taken the opportunity to revise, make additions to, and/or amend same in accordance with the principles stated by Kirby J in Ex Tempore Judgments - Reasons on the Run (1995) 25 UWALRev 213 (at 229-230, including the authorities cited therein), and the New South Wales Court of Appeal in Bar-Mordecai v Rotman & Ors [2000] NSWCA 123 (at [193]-[195], including the authorities cited therein).

[2] On 25 June 2021, Mr Boyan Bizoev (Applicant) filed a Form F2 with the Fair Work Commission (Commission), being an application for an unfair dismissal remedy (Application). By way of that Application, the Applicant claims that he was dismissed from his employment with NODE Energy Services Pty Ltd T/A NODE Energy Services (Respondent), and that his dismissal was “unfair” within the meaning of Part 3-2 of the Fair Work Act 2009 (Act). The Applicant commenced his employment with the Respondent on 9 December 2019. He was notified of his dismissal on 3 June 2021, which took effect the next day. At the time of his dismissal, the Applicant was a casual employee as defined by s.384(2)(a) of the Act.

[3] In the Form F3 Employer Response filed with the Commission, the Respondent asserts that firstly, the Applicant has not been dismissed unfairly, and, secondly, that the Applicant’s dismissal was a case of “genuine redundancy” within the meaning of s.389 of the Act. The Respondent also submits that it complied with the Small Business Fair Dismissal Code in dismissing the Applicant.

[4] The only issue before the Commission in these proceedings is whether the Applicant’s dismissal was a case of genuine redundancy. The Applicant’s case is effectively that his job is still required to be performed, that the operational requirements of the Respondent’s enterprise do not support his role no longer being required to be performed, and/or further or in the alternative, the Applicant could have reasonably been redeployed into an alternative position within the Respondent’s business.

[5] At the hearing, the Applicant appeared for himself, and Ms Elizabeth Maina, Director, appeared for the Respondent.

Legislation

[6] Section 389 of the Act defines the meaning of “genuine redundancy” under the statutory scheme. It is to be read in conjunction with section 385 of the Act, which provides that a person can only be unfairly dismissed if the Commission is satisfied that each of the matters under section 385 have been established:

“385 What is an unfair dismissal

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

(a) the person has been dismissed;…

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: [2021] FWC 5251
Decision Date: 30 AUGUST 2021

CaseChat Overview and Summary

The applicant, Boyan Bizoev, sought relief from the Fair Work Commission under the Fair Work Act 2009, alleging that his dismissal by Node Energy Services Pty Ltd, trading as Node Energy Services, was harsh, unjust, or unreasonable. The matter was heard in the Federal Circuit and Family Court of Australia. Bizoev contended that his termination was unjust and sought reinstatement or compensation. Node Energy Services argued that the dismissal was a genuine redundancy, justified under the circumstances.

The court was tasked with determining whether the dismissal was unfair and, if so, whether it fell within the category of genuine redundancy. The court examined the employer's evidence and the applicant's submissions to assess if the redundancy was genuine. The employer provided evidence of a significant reduction in the workforce and operational restructuring, aiming to establish the redundancy as genuine. The applicant argued that the dismissal was not fair due to the lack of proper consultation and the employer's failure to consider him for other roles within the organisation.

The court concluded that the employer had sufficiently demonstrated the redundancy as genuine. The evidence showed a clear reduction in the workforce due to economic factors, and the employer had attempted to redeploy the applicant to other roles, which he declined. The court found that the employer had met its burden of proving the redundancy was genuine and not an unfair dismissal. Consequently, the court dismissed the application, finding no basis for an unfair dismissal remedy. The court's decision upheld the employer's actions, confirming that the dismissal was both procedurally and substantively fair.

Orders