DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Darlene Khoury
v
Vaughan Constructions Pty Ltd
(U2020/10259)

DEPUTY PRESIDENT BOYCE

SYDNEY, 23 FEBRUARY 2021

Application for an unfair dismissal remedy — whether dismissal was a case of genuine redundancy —job no longer required to be performed by anyone — redundancy a result of changes in operational requirements — Award consultation provisions do not apply because redundancy not a “major” change — no suitable alternative jobs for redeployment — objection regarding genuine redundancy upheld — application dismissed.

Introduction

[1] Ms Darlene Khoury (Applicant) has filed a Form F2 with the Fair Work Commission (Commission), being an application for an unfair dismissal remedy (Application). By way of that Application, the Applicant claims that she was dismissed from her employment with Vaughan Constructions Pty Ltd (Respondent) on 27 July 2020, and that her dismissal was “unfair” within the meaning of Part 3-2 of the Fair Work Act 2009 (Act).

[2] In the Form F3 Employer Response filed with the Commission, the Respondent asserts that the Applicant’s dismissal was a case of “genuine redundancy” within the meaning of s.389 of the Act.

[3] Following the receipt of submissions and evidence in accordance with directions made, I held a hearing in Sydney to resolve the Application on 6 October 2020. The Applicant appeared for herself. Mr L Howard of counsel, instructed by Ms Grace Turner-Mobbs (Solicitor, KCL Law), appeared with permission for the Respondent.

[4] Following that hearing, written closing submissions from both parties were filed, and closing oral submissions were made on 25 November 2020. Mr John Peters (the Applicant’s brother-in-law, and neither a lawyer nor paid agent) appeared for and was instructed by the Applicant. The Respondent’s appearances remained the same as the prior hearing.

[5] Having had regard to the evidence tendered, and the submissions of the parties on the facts and the law, I have determined that the Applicant’s dismissal was a case of “genuine redundancy” within the meaning of the Act. My reasons for this decision follow.

Representation by lawyer or paid agent

[6] The Respondent sought to be represented by a lawyer in this matter. The Applicant did not oppose the Respondent being represented. Pursuant to the discretion afforded to me under s.596 of the Act, I granted permission to the Respondent to be legally represented by solicitors from KCL Law.

[7] I made this decision having had regard to the criteria set out under s.596 of the Act. In that regard, I note the following:

(a) The facts and circumstances leading up to the Applicant’s dismissal are lengthy.

(b) The case law relied upon by the Respondent is somewhat complex, in that it advances such law in terms of the correct way to construe terms of the relevant modern award.

(c) Given that the parties would be engaging in cross-examination of witnesses, I formed the view that the Commission would be in a better…

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 339
Decision Date: 23 FEBRUARY 2021

CaseChat Overview and Summary

Darlene Khoury applied to the Fair Work Commission for an unfair dismissal remedy against Vaughan Constructions Pty Ltd, asserting that her dismissal was unfair and that she should be compensated. Vaughan Constructions argued that the dismissal was a case of genuine redundancy due to changes in their operational requirements. The Fair Work Commission was tasked with determining whether the dismissal was indeed a case of genuine redundancy and whether the company complied with the relevant award provisions.

The central legal issue was whether the dismissal was genuinely redundant. This required the Commission to consider whether the position Ms Khoury held had genuinely ceased to exist due to operational changes. The Commission also needed to determine whether there were any suitable alternative positions for redeployment and whether the company complied with the award's consultation requirements. The Commission found that the position Ms Khoury held had genuinely ceased, and no suitable alternative positions were available. However, the Commission ruled that the changes in operational requirements did not constitute a "major" change, thus the award consultation provisions did not apply. Consequently, the Commission upheld the objection regarding genuine redundancy and dismissed the application.

The Fair Work Commission concluded that the dismissal was a case of genuine redundancy and that the company had complied with the relevant provisions of the award. The Commission found that the position Ms Khoury held genuinely ceased to exist, and no suitable alternative positions were available. Therefore, the Commission dismissed the application for an unfair dismissal remedy.

Orders