DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gambhir Singh
v
Win Win Recruiters Pty Ltd
(U2020/3964)

DEPUTY PRESIDENT BOYCE

SYDNEY, 7 DECEMBER 2020

Application for an unfair dismissal remedy — whether dismissal for reasons of genuine redundancy — applicant asserts his job still exists because his duties are still being performed by other employees in the business — applicant asserts that he was selected for redundancy due to complaints he made to the respondent about alleged underpayments of wages — evidence discloses genuine operational requirements as the reason for the applicant’s dismissal — evidence discloses genuine consultation — no redeployment opportunities available at time of dismissal — applicant’s job in excess to business needs — application dismissed.

Introduction

[1] Mr Gambhir Singh (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 he was dismissed from his employment with Win Win Recruiters Pty Ltd (Respondent) on 23 March 2020, and that his 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. Mr G Foster of Counsel, instructed by Mr A Sirohi (Solicitor, Harish Prasad & Associates), appeared with permission for the Applicant. Mr Mukul Dey (Solicitor, Associated Legal) appeared with permission for the Respondent.

[4] Having had regard to the evidence and submissions before me, I have determined that the Applicant’s dismissal was a case of “genuine redundancy” within the meaning of the Act. Accordingly, the Application is to be dismissed. My reasons for making this determination follow.

Representation by lawyer or paid agent

[5] Both parties sought to be represented by a lawyer in this matter. Neither party opposed the other being represented. Pursuant to the discretion afforded to me under s.596 of the Act, I granted such permission to both parties. I did so having regard to the fact that the proceedings concerned a question of genuine redundancy, being a matter that has previously been considered by this Commission to be “complex”. 1 Further, given the parties sought to cross-examine one another, I took the view that the Commission would be in a position to conduct the proceedings more efficiently with the assistance of legal representatives.

Facts not in dispute

[6] Up until November 2019, the Respondent operated three food outlets, namely:

(a) Taj Indian Sweets in Harris Park, New South Wales;

(b) Taj Bhawan in Harris Park, New South Wales; and

[7] From 27 August 2018, the Applicant was employed…

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: [2020] FWC 6190
Decision Date: 7 DECEMBER 2020

CaseChat Overview and Summary

The case of Gambhir Singh v Win Win Recruiters Pty Ltd involved an application for an unfair dismissal remedy. The applicant, Mr Singh, claimed that his dismissal was unfair as his job still existed because other employees were performing his duties. He also alleged that he was selected for redundancy due to complaints he made about alleged underpayments of wages. The respondent, Win Win Recruiters Pty Ltd, maintained that the dismissal was for genuine redundancy reasons.

The court was required to determine whether the respondent had valid grounds for dismissing Mr Singh. This involved assessing whether the dismissal was for genuine redundancy reasons, if there was proper consultation, and if there were genuine operational requirements justifying the dismissal. Additionally, the court needed to examine whether Mr Singh's job was in excess of the business needs and if there were any redeployment opportunities available at the time of dismissal.

The court found that the respondent had provided evidence of genuine operational requirements for the dismissal and had engaged in proper consultation. It was established that Mr Singh's role was in excess of the business needs, and no redeployment opportunities were available. The court also noted that the timing of Mr Singh's complaints about wage underpayments did not influence the decision to dismiss him. Consequently, the court concluded that the dismissal was fair and dismissed Mr Singh's application for an unfair dismissal remedy.

The court ordered that the application for unfair dismissal be dismissed, with no orders for costs.

Orders