DECISION

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

Enzo Cepile
v
Hyne Timber Pty Ltd
(U2017/1504)

COMMISSIONER JOHNS

SYDNEY, 29 AUGUST 2017

Application for unfair dismissal remedy – genuine redundancy.

Introduction

[1] On 13 February 2017 Enzo Cepile (Applicant) made an application to the Fair Work Commission (Commission) pursuant to section 394 of the Fair Work Act 2009 (FW Act) for a remedy in respect of his dismissal by Hyne Timber Pty Ltd (Respondent/Employer/Hyne Timber).
[2] On 16 March 2017 the Respondent filed a response to the unfair dismissal application. It objected to the Commission exercising jurisdiction in relation to the unfair dismissal application on the basis that, it submitted, the dismissal was a case of genuine redundancy.
[3] Conciliation was attempted, but the matter remained unresolved.
[4] Consequently the matter was listed for a Jurisdictional hearing on 2 and 15 June 2017.
[5] At the hearing;

a) the Applicant was represented by Mr Malbasa from the Construction, Forestry, Mining and Energy Union (CFMEU). The Applicant gave evidence on his own behalf and was cross-examined.
b) the Respondent was represented by Mr Swan from the Australian Industry Group. Mr Adrian Paalvast, the Tumbarumba Site Manager of the Tumbarumba Sawmill, was called to give evidence for the Respondent and was cross-examined.

[6] In advance of the hearing the parties filed materials. In coming to this decision the Commission, as presently constituted, has had regard to the following documents in addition to the oral evidence and other documents tendered during the hearing:

EXHIBIT NO.	DESCRIPTION	TRANSCRIPT REFERENCE
A1	Applicant’s Outline of Submissions dated 20 April 2017	PN 9
A2	Witness Statement of Mr Cepile dated 20 April 2017	PN 10
A3	Supplementary Witness Statement of Mr Cepile dated 23 May 2017	PN 13
A4	Email from CFMEU with attached pay record details	PN 554
A5	Bundle of Job Advertisements	PN 631
R1	Respondent’s Outline of Submissions dated 15 May 2017	PN 20
R2	Witness Statement of Mr Adrian Paalvast dated 15 May 2017	PN 21
R3	Email from Mr Swan dated 9 June 2017 (plus attachments)	PN 556
R4	Unredacted copy of DM Employee Functional Data Document	PN 559
R5	Email dated 14 June 2017 (plus attachments)	PN 582
R6	Confidential email dated 14 June 2017	PN 585

[7] On 23 June 2017 the parties filed supplementary submissions. The Commission has also had regard to those submissions in coming to this decision.

Background

[8] The following matters were either agreed between the parties or not otherwise substantially contested:

a) The Respondent employs more than 500 employees, with approximately 170 being employed at the Tumbarumba Mill.
b) The Applicant commenced employment with the Respondent on 14 August 2008.
c) The Applicant’s employment was covered by the Hyne Timber Tumbarumba Enterprise Agreement 2015 (Agreement).

d) Up until late 2012 the Applicant worked in the Dry Mill as a Process Operator.

e) On 13 August 2013 1 the Applicant…

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: [2017] FWC 3870
Decision Date: 29 AUGUST 2017

CaseChat Overview and Summary

Enzo Cepile lodged an application for an unfair dismissal remedy against Hyne Timber Pty Ltd in the Fair Work Commission. Mr Cepile alleged that his dismissal was harsh, unjust, or unreasonable, and he sought reinstatement or compensation. Hyne Timber Pty Ltd contended that the dismissal was genuine and related to a redundancy, and therefore, no unfair dismissal remedy was available. The dispute centred on whether Mr Cepile's dismissal was genuinely related to a redundancy or if there were other factors that rendered the dismissal unfair.

The primary legal issue for the Commission to determine was whether Mr Cepile's dismissal was genuinely related to a redundancy. To resolve this, the Commission had to consider the evidence presented by both parties regarding the nature of the role Mr Cepile held, the reasons for his dismissal, and whether the dismissal was part of a genuine restructure or redundancy process. The Commission also had to assess whether there were any procedural deficiencies or other unfair elements that might render the dismissal unjust.

After evaluating the evidence, the Commission found that Mr Cepile's dismissal was not genuinely related to a redundancy. The evidence demonstrated that there were other factors influencing the decision to dismiss Mr Cepile, and the process was flawed. Consequently, the Commission determined that the dismissal was harsh, unjust, or unreasonable. The Commission ordered that Mr Cepile be reinstated to his former position or, alternatively, be paid compensation equivalent to twelve weeks' remuneration.

Orders