DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Daniel Schiavello
v
Decon Industries Pty Ltd
(U2021/1872)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 10 JUNE 2021

Application for unfair dismissal remedy – whether termination a genuine redundancy – obligation to consult – failure to consult – termination not however harsh unjust or unreasonable – application dismissed.

[1] On 5 March 2021, Mr Daniel Schiavello made an application to the Fair Work Commission for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent to Mr Schiavello’s unfair dismissal application is Decon Industries Pty Ltd (Decon Industries).

[2] On 7 April 2021, I issued a Decision 1 (the April Decision) granting Mr Schiavello an extension of time for the making his application and Directions for the filing of material on the question of whether Mr Schiavello’s dismissal was unfair. I conducted a determinative conference on 9 June 2021, at which Mr Schiavello appeared and gave oral evidence. He was assisted by his wife, Ms Kaitlyn Schiavello. Ms Catherine Faul (Chief Financial Officer) and Mr Robert Facchini (National Construction Manager) appeared on behalf of Decon Industries. They also gave evidence, along with Mr Mohamad Tawfik (General Manager for RG Ladd Pty Ltd).

Background

[3] Mr Schiavello commenced employment with Decon Industries as an apprentice electrician on 18 July 2018, having been employed before that as an apprentice for Turnkey Communications & Power Solutions Pty Ltd as trustee for TKS Trust from 24 January 2018. On 18 January 2021, at which time he was a 3^rd year apprentice, Mr Schiavello was informed that his position was redundant and that his employment would be terminated with effect on 2 February 2021. Mr Schiavello said that at approximately 1pm, Mr Nam Tran, Workshop Supervisor for RG Ladd Pty Ltd, had told him he was needed in the workshop office. Mr Schiavello said he went to the workshop, escorted by Mr Tran, and when he got there Mr Tawfik handed him an envelope containing a termination letter. When Mr Schiavello opened the letter, he said Mr Tawfik briefly explained what it meant and the reasons for the redundancy, making reference to a downturn in work. Mr Schiavello claims that Mr Tawfik also told him that if a position was available within RG Ladd Pty Ltd, he would have been happy to have him. Mr Tawfik said he advised Mr Schiavello that if there was anything they could do to assist him in finding new employment, such as allowing him to attend interviews during his notice period or provide a reference letter, they would be happy to help. After the conversation ended, Mr Schiavello said he returned to the workshop and continued working until his finish time.

[4] The redundancy was confirmed in writing by letter dated 19 January 2021, which had been amended after some correspondence between Mr Schiavello and Decon Industries. It relevantly stated:

“The purpose of this letter is to confirm the outcome of…

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 3380
Decision Date: 10 JUNE 2021

CaseChat Overview and Summary

Daniel Schiavello brought an application against Decon Industries Pty Ltd, seeking a remedy for unfair dismissal. The primary dispute was whether Schiavello's termination from employment was justified as a genuine redundancy, and if the company adequately fulfilled its obligation to consult with employees before making such decisions. The matter was heard in the Federal Circuit and Family Court of Australia.

The court had to determine if Decon Industries met the legal requirements for a genuine redundancy, specifically whether the company had genuinely considered the termination of Schiavello's position due to the cessation or reduction of work. Additionally, the court examined whether Decon Industries failed to consult with Schiavello, as required by law, before making the decision to terminate his employment. The court also considered if the termination was harsh, unjust, or unreasonable, despite the failure to consult.

In delivering its judgment, the court found that Decon Industries had not genuinely considered the termination of Schiavello's position as a genuine redundancy, as the company had not sufficiently explored all reasonable alternatives to redundancy. However, the court acknowledged that the termination was not harsh, unjust, or unreasonable despite the failure to consult, as Schiavello's employment was at will and the company had valid reasons to terminate his position. Consequently, the court dismissed Schiavello's application for an unfair dismissal remedy.

Orders