DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Susana Gomes
v
OE & DR Pope Pty Ltd T/A Pope Packaging
(U2014/6388)

COMMISSIONER HAMPTON

ADELAIDE, 22 DECEMBER 2014

Application for relief from unfair dismissal - redundancy - not genuine redundancy under the Act due to non-compliance with consultation obligation - whether dismissal harsh, unjust or unreasonable - whether redundancy valid reason under the Act or to be taken into account under other considerations - genuine reason for redundancy - real consequences of failure to consult - available mitigation alternatives - dismissal unfair - reinstatement appropriate remedy given circumstances - redundancy payments to be returned - continuity and partial lost pay orders appropriate - orders made.

1. Introduction and Case Outline

[1] Ms Susana Gomes has made an application to the Commission seeking a remedy for an alleged unfair dismissal. The application has been made under s.394 of the Fair Work Act 2009. Ms Gomes’ employer was OE & DR Pope Pty Ltd T/A Pope Packaging (Pope Packaging).

[2] Pope Packaging is a manufacturer and supplier of paper, plastic and textile packaging and has plants at both Wingfield and Woodville in South Australia.

[3] Ms Gomes commenced employment with Pope Packaging on 17 August 2006 in a casual position and became a full-time quality controller in February 2007. Ms Gomes was continuously employed by Pope Packaging until the date of her dismissal and had worked at both the Wingfield and Woodville plants. At the time of her dismissal, Ms Gomes was a full-time machine operator at the Woodville plant.

[4] Ms Gomes was dismissed on the stated grounds of redundancy on 4 April 2014. Ms Gomes contends that the dismissal was not a case of genuine redundancy due to reasons including the employer’s failure to consult with her or her union as required under the Act. This, she contends, was a “breach” of the relevant modern award. Ms Gomes also contends that Pope Packaging failed to make any genuine attempts to redeploy her.

[5] Ms Gomes further contends that there was no valid reason for the termination and that it was unfair within the meaning of the Act. Amongst other reasons, Ms Gomes contends that dismissal has imposed great hardship on her due to her personal circumstances including limited English language skills. Furthermore, in the context of a long term loyal employee with a good employment record, the dismissal was harsh and unreasonable.

[6] Ms Gomes seeks reinstatement to a position no less favourable than her former role, with continuity of service and payment of lost wages (after taking into account the redundancy payments already received, which she has offered to repay if appropriate orders are made).

[7] In the first instance, Pope Packaging raised a jurisdictional objection on the basis that the dismissal was a genuine redundancy within the meaning of s.389 of the Act. That is, the dismissal was said to be for genuine operational reasons and occurred in the context of a decision…

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.

Continue reading Gomes v OE & DR Pope Pty Ltd

Details

AGLC: Gomes v OE & DR Pope Pty Ltd [2014] FWC 8342
Case: [2014] FWC 8342
Decision Date: 22 DECEMBER 2014

CaseChat Overview and Summary

Gomes commenced proceedings against OE & DR Pope Pty Ltd seeking relief from unfair dismissal, contending that the dismissal was due to redundancy but was unfair because it was not genuine. The Fair Work Commission heard the matter. The central legal issue was whether the dismissal was genuinely due to redundancy as required by the Act. Additionally, the court needed to determine if the dismissal was harsh, unjust, or unreasonable and whether the redundancy was a valid reason under the Act or should be considered under other relevant factors. The court also assessed whether a genuine reason for redundancy existed, the real consequences of the failure to consult, available mitigation alternatives, and whether reinstatement was an appropriate remedy given the circumstances.

The court found that the dismissal was not genuinely due to redundancy because the employer failed to comply with the statutory obligation to consult. The redundancy was not a valid reason for the dismissal under the Act. The court considered the real consequences of the failure to consult, which included a failure to provide Gomes with an opportunity to express views and to be considered for alternative positions. The court noted that there were available mitigation alternatives, such as offering Gomes a different role within the company, which the employer did not pursue. Given these findings, the dismissal was deemed harsh, unjust, or unreasonable. The court concluded that reinstatement was an appropriate remedy in the circumstances, and ordered the employer to reinstate Gomes to their former position. Additionally, the court ordered that any redundancy payments made to Gomes be returned, and that continuity and partial lost pay orders be made in Gomes's favour.

The court's final orders included the reinstatement of Gomes to their former position, the return of any redundancy payments received by Gomes, and the imposition of continuity and partial lost pay orders in Gomes's favour. The court's decision highlighted the importance of compliance with consultation obligations in redundancy situations and underscored the consequences of failing to do so.

Orders