Carmen Houdayed v David Jones - [2024] FWC 1493

[2024] FWC 1493

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Carmen Houdayed
v

David Jones

(U2024/1791)

Saud Abu-Samen

David Jones Pty Ltd

(U2024/1801)

Antoinette Grixti

David Jones Pty Ltd

(U2024/1808)

Helena Nesci

David Jones Pty Ltd

(U2024/1812)

COMMISSIONER CRAWFORD

SYDNEY, 7 JUNE 2024

Applications for an unfair dismissal remedy – jurisdictional objections – genuine redundancy – three dismissals were genuine redundancies – one dismissal not a genuine redundancy – redeployment reasonable – three applications dismissed – one jurisdictional objection dismissed

Background

On 27 January 2024, David Jones Pty Ltd (David Jones) terminated the employment of the following employees on the ground of redundancy:

· Carmen Houdayed (Ms Houdayed)
· Saud Abu-Samen (Mr Abu-Samen)
· Antoinette Grixti (Ms Grixti)
· Helena Nesci (Ms Nesci)

collectively, the Applicants.

The Applicants were all engaged at David Jones’ Burwood store prior to their dismissals. The Applicants held the following part-time positions prior to their dismissals:

· Ms Houdayed: Customer Service Centre – part of Homewares department.
· Mr Abu-Samen: Sales Expert – Homewares department.
· Ms Grixti: Customer Service Assistant – Homewares department.
· Ms Nesci: Sales Professional – Accessories and Handbags.

The terminations arose following a decision to refurbish the Burwood store, which is in a Westfield complex. Prior to the refurbishment, David Jones operated its store on three levels of the complex. The effect of the refurbishment is that the store will only operate on one level while the other two levels are being refurbished, and ultimately only on the two refurbished levels once the work is completed.

The Applicants filed unfair dismissal applications on 19 February 2024. David Jones filed Form F3 employer responses for all the applications on 29 February 2024. All employer responses identified a jurisdictional objection on the ground that each dismissal was a case of “genuine redundancy.”

During a Mention/Directions proceeding on 15 March 2024, the parties agreed to the following matters:

· David Jones’ jurisdictional objections would be heard and determined as a first step in relation to all applications.

· All four applications would be dealt with together as a matter of efficiency. I note there were initially five applications, but one matter was discontinued prior to the determinative conferences.

· The jurisdictional objections would be listed for determinative conference via video, largely because four of the five applicants were self-represented. This later became four of the four applicants being self-represented after the other application was discontinued.

I issued directions for the filing of material regarding David Jones’ jurisdictional objections and listed a determinative conference for 8 May 2024.

On 5 April 2024, David Jones filed a submission in support of a request to be legally represented at the determinative conference on 8 May 2024. On 29 April 2024, the Applicants filed a joint submission which opposed permission being granted to David Jones to be legally represented.

At the beginning of the determinative conference on 8 May 2024, I heard…

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: [2024] FWC 1493
Decision Date: 7 JUNE 2024

CaseChat Overview and Summary

The applicants, Carmen Houdayed, Saud Abu-Samen, Antoinette Grixti and Helena Nesci, brought separate unfair dismissal applications against David Jones, which terminated their employment on the ground of redundancy. The applicants argued the dismissals were not genuine redundancies, or if they were, that it was reasonable for them to be redeployed. David Jones filed jurisdictional objections arguing the dismissals were genuine redundancies and it was not reasonable to redeploy the applicants. Commissioner Crawford heard the jurisdictional objections and the merits of the applications together and dismissed the jurisdictional objections in relation to Ms Nesci, but upheld the objections in relation to Ms Houdayed, Mr Abu-Samen and Ms Grixti. In relation to Ms Nesci, the Commission found it would have been reasonable for her to be redeployed and her dismissal was not a case of genuine redundancy. The Commission found the dismissals of Ms Houdayed, Mr Abu-Samen and Ms Grixti were cases of genuine redundancy, as their roles were no longer required to be performed by anyone because of changes in David Jones’ operational requirements at the Burwood store. The Commission also found it was not reasonable to redeploy Ms Houdayed, Mr Abu-Samen and Ms Grixti. The applications brought by Ms Houdayed, Mr Abu-Samen and Ms Grixti were dismissed. The merits of Ms Nesci’s application will now be progressed by the Commission.

The Commission dismissed the jurisdictional objections of David Jones in relation to the unfair dismissal application brought by Ms Nesci and found her dismissal was not a case of genuine redundancy as it would have been reasonable for her to be redeployed to a vacant Beauty Consultant, Clinique role at the Elizabeth Street store. The Commission found David Jones’ reasons for not redeploying Ms Nesci were unpersuasive. The unfair dismissal application brought by Ms Nesci will now progress to the merits stage. The Commission upheld the jurisdictional objections of David Jones in relation to the unfair dismissal applications brought by Ms Houdayed, Mr Abu-Samen and Ms Grixti and found their dismissals were cases of genuine redundancy. The Commission found it was not reasonable for David Jones to redeploy Ms Houdayed, Mr Abu-Samen or Ms Grixti. As a result, the unfair dismissal applications brought by Ms Houdayed, Mr Abu-Samen and Ms Grixti were dismissed.

Orders