Gregory Gepp v GPG Retail Operations Pty Ltd t/a GPG Caltex

[2011] FWA 3225

[2011] FWA 3225

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gregory Gepp
v
GPG Retail Operations Pty Ltd t/a GPG Caltex
(U2010/3125)

COMMISSIONER GOOLEY MELBOURNE, 24 MAY 2011

[1] Mr Gregory Gepp (the Applicant) was employed by GPS Employment Services Pty Ltd (formerly called GPG Mobil No 2 Pty Ltd) as a casual console operator from 3 October 2007 until his employment was terminated on 1 September 2010.

[2] The Applicant lodged an application for relief pursuant to section 394 of the Fair Work Act 2009 alleging that he was unfairly dismissed. The application was referred to conciliation on 3 February 2011 and the Applicant did not participate. The matter was referred for hearing on 19 May 2011.

[3] The Applicant named as the Respondent to the proceedings GPG Retail Operations Pty Ltd t/a GPG Caltex (GPG Retail).

[4] On 18 February 2011 GPG Retail objected to the application on the grounds that GPG Retail was not and never was the employer of the Applicant.

[5] The jurisdictional objection was listed for hearing on 19 May 2011 and directions were issued for the filing of material. On the 13 April 2011 GPG Retail filed documentary evidence in support of its jurisdictional objection. The Applicant was required to file his response by 20 April 2011 but did not do so.

[6] On 9 May 2011 my chambers contacted Mr Gepp who advised that he was seeking further conciliation and that he was unable to attend the hearing. Contact was also made with Mr Anthony van Breugel who advised that he objected to the Applicant being granted leave to amend his application so as to correctly name the employer.

[7] On 13 May 2011 my associate wrote to Mr Gepp advising that the hearing was to proceed and informed him that the matter to be determined was whether the application should be dismissed because it was alleged that GPG Retail was not his employer. Mr Gepp was advised that if he wished to amend his application he was to provide a written application and witness statements and submissions in support of the application prior to the hearing.

[8] On 16 May 2011 Mr Gepp sent an email in which he set out his reasons for not complying with the original directions in this matter. This email advised that his employer was GPG Mobil No 2 Pty Ltd and that “I am not aware of being employed by either GPG Employment Services or GPG Retail Operations and am not sure what relevance the two latter business entities have in this matter.”

[9] A copy of this email was forwarded to Mr van Breugel who was the contact person for GPG Retail.

[10] On 19 May 2011 Mr Gepp sent an email at 9.27am in which he advised that a medical emergency had arisen on 18 May 2011 which meant he was unable to attend the hearing.

[11] At the hearing Ms Tania Angelopoulos appeared for Mr van Breugel. Mr Gepp did not attend.

[12] I advised Ms Angelopoulos of Mr Gepp’s email and advised that I would treat this email as an application for an adjournment.

[13] I asked Ms Angelopoulos if there was any objection to the matter being adjourned and she said there was not. I further asked Ms Angelopoulos if there was any objection to Mr Gepp being given leave to amend his application to correctly name the employer. She advised that Mr van Breugel was a director of both companies.

[14] I explained to Ms Angelopoulos that if leave was granted the application for unfair dismissal would then be set down for determination. She said there was no objection to leave being granted.

[15] As Mr van Breugel, the director of both companies, had been on notice of Mr Gepp’s unfair dismissal application and because there was no objection at the hearing to leave being granted I determined to grant leave to Mr Gepp to amend the application so as to correctly identify Mr Gepp’s true employer.

[16] I note however, on the basis of the material filed by Mr Gepp, that the business which was operated by GPS Employment Services Pty Ltd was sold to United Petroleum and that Mr Gepp’s employment with GPS Employment Services Pty Ltd ended as a result of that sale. Mr Gepp’s complaint seems to be he was advised that he would be offered a position by United Petroleum.

[17] Section 385 of the Fair Work Act 2009 provides that a dismissal is not unfair if the dismissal arose from a genuine redundancy.

[18] Section 389 defines a genuine redundancy as follows:

“(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer.”

[19] Directions for the filing of material will issue with this decision. Both Mr Gepp and the Respondent are directed to address the issue of whether this is a case of a genuine redundancy in their submissions.

COMMISSIONER

Appearances:

No appearance by the Applicant.

Ms T Angelopoulos for the Respondent.

Hearing details:

2011.

Morwell:

May 19.

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