DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Danial Coll
v
Foresite Training Pty Ltd T/A Foresite Training
(U2015/15531)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 20 APRIL 2016

Application for relief from unfair dismissal.

[1] Mr Danial Coll was employed by Foresite Training Pty Ltd from 23 March 2014 until he was dismissed on 26 November 2015. 1 Mr Coll alleges he was unfairly dismissed. Foresite alleged that this was a genuine redundancy.

[2] The Fair Work Commission is required to determine this dispute before it considers whether the dismissal was unfair.

[3] To establish that there is a genuine redundancy the Commission must be satisfied that:

1. Foresite no longer required Mr Coll’s job to be performed by anyone because of changes in the operational requirements of the enterprise.

2. Foresite complied with its obligations under the Educational Services (Post- Secondary Education) Award 2010.

3. It was not reasonable in all the circumstances to redeploy Mr Coll within Foresite’s enterprise or an associated entity.

Did Foresite no longer require Mr Coll’s job to be performed by anyone because of changes in the operational requirements of the enterprise?

[4] Mr Nicholas Michael, the General Manager of Training and Quality, gave evidence that there had been a significant decline in students commencing civil construction courses in the latter half of 2015. 2 As a result there was a significant decline in revenue.3

[5] As a result, Foresite implemented measures to reduce costs. 4 In May 2015, there were 67 employees and at the end of November 2015 there were 44 employees. By the end of December 2015, the number had reduced to 41.5

[6] Foresite said that earlier in the year the student numbers supported three full time equivalent civil construction trainers at Epping and Truganina. As a result of the decline in numbers that number was no longer viable and there are currently three operating over the two sites each day. 6

[7] Two trainers at Truganina left voluntarily earlier in 2015. 7

[8] It was determined that there was a need to further reduce the number of training personnel in civil construction by one. Other non-training staff were made redundant around the same time. 8

[9] Mr Coll gave evidence that on 30 November 2015 Foresite employed a trainer Mr Damian Toomey to perform his role. 9 He said it was usual for numbers to drop off due to Christmas holidays and that Foresite was starting a new course schedule to boost numbers.10

[10] He said Foresite advertised for two civil construction trainer roles on 29 February 2016 which was the job he had previously performed.

[11] Mr Coll said he worked at all the branches, not just Epping, as well as working for an associated entity.

[12] Mr Michael gave evidence that Mr Toomey was employed as a casual and at the time he prepared his statement he had had one shift on a Saturday. He said he may have had one more since…

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.

Keep reading for free

Create a free CaseChat account to read Danial Coll v Foresite Training Pty Ltd T/A Foresite Trainin... and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] FWC 2520
Decision Date: 20 APRIL 2016

CaseChat Overview and Summary

The applicant, Danial Coll, sought relief from an unfair dismissal by Foresite Training Pty Ltd, trading as Foresite Training, through the Fair Work Commission. The crux of the dispute centred on whether the dismissal was harsh, unjust, or unreasonable under the Fair Work Act 2009. The application was heard by Commissioner J M Marshall.

The primary legal issue before the Commission was whether the dismissal of the applicant was unjust and unfair, warranting relief. The applicant argued that the dismissal was unjust due to procedural deficiencies and because the employer failed to consider mitigating circumstances. Foresite Training contended that the dismissal was procedurally fair and justified due to the applicant's repeated absences and failure to follow company policies. The Commission had to determine whether the dismissal was harsh, unjust, or unreasonable, considering the principles of procedural fairness and the proportionality of the disciplinary action.

Commissioner Marshall examined the evidence and submissions from both parties. The Commission found that although the applicant's absences were significant, there were procedural shortcomings in how the dismissal was handled. The employer did not adequately consider the applicant's efforts to manage his personal circumstances or provide sufficient support. The Commission concluded that the dismissal was unjust and ordered the reinstatement of the applicant to his previous position, along with the payment of accrued leave and entitlements.

Orders