DECISION

Fair Work Act 2009
s 394—Unfair dismissal

Felipe Rocha de Souza
v
UPC Pty Ltd
(U2019/2643)

DEPUTY PRESIDENT SAMS

SYDNEY, 19 JULY 2019

Application for an unfair dismissal remedy – whether genuine redundancy – marketing for international students to study in Australia – applicant engaged to explore and develop South American and European markets – results not promising – warning of redundancy – alleged agreement to take leave without pay – no market improvement – redundancy of applicant – genuine reason for redundancy – no options for redeployment – objection of respondent upheld – genuine redundancy – no jurisdiction of the Commission – application dismissed.

INTRODUCTION

[1] Mr Felipe Rocha de Souza was first employed by the University Preparation College (‘UPC’ or the ‘respondent’), pursuant to a fixed three month term contract as a Project Manager from 20 August 2018 to 19 November 2018. UPC is a registered training organisation which delivers vocational education programs to domestic and international students. The majority of students are international students, primarily from Asia. UPC has two campuses in New South Wales. Mr de Souza was tasked to open new market opportunities targeted at students from South America and Europe, to study in Australia. He became an ongoing employee of UPC on 1 December 2018 in the role of Sales and Marketing Manager on a salary of $95,000 per annum.

[2] On 8 March 2019, Mr de Souza received the following letter from Dr Kam Ming Yu, Chief Executive Officer:

‘Dear Mr Felipe Rocha de Souza,

After more than nine months of trying to enter the South American and European markets without tangible success, the senior management has decided to leave these two markets and reallocate our resources to concentrate on our traditional markets in Asia.

In light of this decision, we are sorry to inform that the position of Sales and Marketing Manager (South American and European Markets) has been abolished and your employment with UPC will unfortunately be ended (sic) on 7^th April, 2019.

We are going to inform the Home Affairs Department about the decision. Please contact your migration lawyer who can advise you further about your immigration status.

We are regretted about the decision and we wish you successful (sic) in your career development.

Yours sincerely,

Dr Kam Ming Yu

Chief Executive Officer’

[3] On the same day, Mr de Souza (hereafter the ‘applicant’) filed an application, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’), in which he disputes the termination of his employment as a genuine redundancy. He claims his dismissal was unfair because:

‘the company has been threatening me and my partner to cancel my visa class 482 in case I insisted to have my wages and expense reports from previous working activities paid.

I demanded them to pay me till Friday (March 15) they have served me a termination letter today (they own (sic) me approx.. 12k).’

[4] Unsurprisingly, the respondent objected to the application,…

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: [2019] FWC 4936
Decision Date: 19 JULY 2019

CaseChat Overview and Summary

Felipe Rocha de Souza, the applicant, filed an application against Upc Pty Ltd, the respondent, seeking relief for unfair dismissal. The applicant was employed as a marketing manager with the primary role of exploring and developing South American and European markets for the respondent’s business, which focuses on facilitating international students to study in Australia. The applicant's performance was unsatisfactory, and despite a warning of potential redundancy, no significant improvement was observed. The respondent alleged an agreement for the applicant to take leave without pay, which the applicant contested. The crux of the matter was whether the dismissal was genuine redundancy and if the Commission had jurisdiction to hear the case.

The court had to determine if the dismissal was justified under the notion of genuine redundancy. It examined whether the respondent had genuine reasons for redundancy and if there were any available options for redeployment. The applicant argued that the dismissal was not genuine and contested the lack of market improvement. The respondent maintained that the dismissal was necessary due to unsatisfactory results and the absence of alternative roles. The court needed to consider whether the applicant's position was indeed redundant and if the dismissal process adhered to legal standards.

The court found that the dismissal was indeed a genuine redundancy. The applicant's role was critical, but the results were unsatisfactory, and no market improvement was achieved. The court noted that the applicant had been given a fair opportunity to improve and was warned of potential redundancy. There were no available options for redeployment, and the applicant's position became redundant. The respondent's objection was upheld, and the court ruled that the dismissal was justified. Consequently, the Commission did not have jurisdiction to hear the application, and the application was dismissed.

Orders