DECISION

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

Churui Hu
v
ACY Capital Pty Ltd
(U2018/10316)

COMMISSIONER CAMBRIDGE

SYDNEY, 19 MARCH 2019

Application for relief from unfair dismissal - jurisdictional objection - ss. 385 and 396 of the 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 not established - dismissal harsh, unjust and unreasonable - compensation Ordered.

[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 made by Churui Hu (the applicant). The respondent employer is the ACY Capital Pty Ltd ABN: 49 167 260 504(ACY or the employer).

[2] The application was lodged at Sydney on 5 October 2018. The application indicated that the date that the applicant’s dismissal took effect was 26 September 2018. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act.

[3] The employer filed a response dated 20 October 2018, which raised a jurisdictional objection to the application on the basis that the dismissal of the applicant was a case of genuine redundancy. The matter was listed for conciliation on 31 October 2018. However, a communication dated 22 October 2018, was sent to the employer on behalf of the Fair Work Commission (the Commission) which, inter alia, stated “…can you confirm that you are still willing to participate in the conciliation conference which has been scheduled? Alternatively, if you would prefer to have the matter proceed directly to a formal hearing, please advise accordingly.”

[4] Later that same day, 22 October 2018, lawyers acting on behalf of the employer responded to this communication and indicated, inter alia, “My client would prefer to progress straight to a formal hearing.” Consequently, the conciliation proceedings were cancelled, and the matter proceeded to arbitration which dealt with the determination of the jurisdictional objection raised by the employer, which involved the question of whether the dismissal of the applicant was a case of genuine redundancy, together with the substantive merits of the claim.

[5] At a Pre-Hearing Conference held on 9 November 2018, the employer sought permission to be represented by lawyers or paid agents, and the applicant indicated that she intended to be represented by lawyers or paid agents. The applicant was Directed to clarify her position regarding representation by lawyers or paid agents by no later than 23 November 2018, and, in the event that she opposed the employer being granted permission to be represented by lawyers or paid agents, she was Directed to file and serve submissions in support of such opposition by no later than that date, 23 November 2018. The applicant failed to comply with this Direction, and subsequently the Commission granted permission pursuant to s. 596 of the Act, for the Parties…

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: [2019] FWC 1635
Decision Date: 19 MARCH 2019

CaseChat Overview and Summary

In the matter of Churui Hu v Acy Capital Pty Ltd, the Federal Circuit and Family Court of Australia was presented with an application for relief from unfair dismissal. The applicant, Churui Hu, sought to challenge the dismissal of his employment by Acy Capital Pty Ltd. The primary legal issue before the court was whether the dismissal was a case of genuine redundancy or, if not, whether the dismissal was harsh, unjust, and unreasonable under the relevant provisions of the Fair Work Act 2009.

The court was required to determine the meaning and application of the term "genuine redundancy" under section 389 of the Act, as well as the elements that constitute such a redundancy. The court examined the evidence presented regarding the nature of the dismissal and whether it met the statutory criteria for a genuine redundancy. After thorough consideration, the court found that the dismissal did not meet the statutory definition of genuine redundancy. Consequently, the court proceeded to assess whether the dismissal was harsh, unjust, and unreasonable, a determination that was ultimately made in favour of the applicant.

The court's reasoning was based on the evidence provided and the statutory criteria outlined in the Fair Work Act 2009. It found that the dismissal did not align with the statutory requirements for a genuine redundancy and, instead, was harsh, unjust, and unreasonable. The court awarded compensation to the applicant, Churui Hu, for the unfair dismissal. The final orders included compensation for the unfair dismissal as determined by the court.

Orders