DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Clint Ledden
v
Envirotech Pty Ltd
(U2018/12731)

COMMISSIONER JOHNS

SYDNEY, 4 JUNE 2020

Application for an unfair dismissal remedy – Jurisdictional objection – Genuine redundancy.

Introduction

[1] On 29 September 2019 Mr Ledden made an application to the Fair Work Commission (Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (FW Act) seeking a remedy for unfair dismissal. The application is in respect of the termination of his employment on 9 September 2019 by Envirotech Pty Ltd (Respondent/Employer/Envirotech), an environmental and engineering consultancy firm. Mr Ledden seeks an order that the Respondent pay compensation to him.

[2] Mr Ledden also has a claim about unpaid work-related expenses in the amount of $700.86. Two days after the termination of his employment Mr Ledden raised the non-payment of the work-related expenses with the Managing Director of Envirotech, Daniel Mathew. Two weeks later Mr Ledden sent a follow up email. On 25 September 2019 Mr Mathew indicated he would “respond tomorrow”. Discourteously Mr Mathew never responded. However, it is apparent that Mr Mathew decided not to reimburse the expenses properly incurred by Mr Ledden in respect of fuel, tyre repair, car washing and parking. Whilst it is very clear that, in deciding not to reimburse Mr Ledden, Mr Mathew is acting unfairly that is not a matter that can be dealt with by the Commission. Notwithstanding, Mr Mathew should do the right thing and reimburse the $700.86. Mr Mathew should stop being so nasty and spiteful.

[3] On 12 November 2019 the Respondent filed a response to the unfair dismissal application. It objected to the Commission exercising jurisdiction in relation to the matter on the basis that, it contended, the dismissal was a case of genuine redundancy.

[4] If the termination was a genuine redundancy then Mr Ledden’s application for an unfair dismissal remedy must be dismissed. If the termination was not a genuine redundancy it becomes necessary to determine if termination of employment was unfair.

[5] Conciliation was attempted, but the dispute remained unresolved. Consequently the matter was listed for a jurisdictional hearing on 21 January 2020 and 21 April 2020.

[6] At the determinative conference:

a) the Applicant represented himself.

b) the Respondent was represented by Mr Daniel Mathew, its Managing Director

[7] In relation to the matter, the parties filed the following materials. In coming to this decision the Commission, as presently constituted, has had regard to the filed material, the oral evidence and other documents tendered during the determinative conference:

EXHIBIT NO.	DESCRIPTION
1	Form F2 – Application
2	Form F3 – Employer’s response
3	Respondent’s Outline of Argument – Objections
4	Respondent’s Outline of Argument – Merits
5	Witness Statement of Daniel Mathew
6a	Employment Agreement
6b	Signed Letter of Offer
6c	Letter of Termination
6d	Consultation meeting regarding redundancy
7	Applicant’s Outline of Argument – Objections
8	Witness Statement of Clint Ledden
9a	Email of 9 July 2019

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 2920
Decision Date: 4 JUNE 2020

CaseChat Overview and Summary

In the case of Clint Ledden v Envirotech Pty Ltd, Clint Ledden, the applicant, sought an unfair dismissal remedy against his former employer, Envirotech Pty Ltd. The applicant contended that his dismissal was unfair, and Envirotech argued that the dismissal was for genuine redundancy. The matter was brought before the Fair Work Commission, which is the tribunal responsible for resolving workplace disputes in Australia.

The primary legal issue the court needed to address was whether Envirotech had valid grounds to dismiss Clint on the basis of genuine redundancy, or if the dismissal constituted an unfair termination. This involved determining whether Envirotech could substantiate its claim that the position held by Clint was genuinely redundant, which required evidence of a structural change in the business, the need for such a change, and the absence of a suitable alternative position for Clint within the organisation. Additionally, the court had to consider whether Envirotech followed proper procedural steps when effecting the dismissal.

Upon reviewing the evidence and submissions from both parties, the Commission found that Envirotech had failed to establish that Clint's dismissal was genuinely due to redundancy. The evidence presented did not convincingly demonstrate that the role Clint held was genuinely redundant, nor did it sufficiently support the claim that there were no suitable alternative positions available. Consequently, the Commission ruled that Clint's dismissal was unfair. The Commission determined that Envirotech had not met its burden of proving that the dismissal was justified on the grounds of genuine redundancy. As a result, the applicant's application for an unfair dismissal remedy was upheld.

In conclusion, the Commission ordered Envirotech to compensate Clint for the unfair dismissal and directed the payment of various entitlements, including notice pay and any accrued but unpaid leave. Envirotech was also required to provide a written apology to Clint for the unfair treatment experienced during the dismissal process. This decision reinforces the importance of employers adhering to fair dismissal procedures and providing adequate justification when claiming redundancy as the reason for termination.

Orders