DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Hamit Ayberk
v
Roche Diagnostics Australia Pty Ltd
(U2015/3804)

COMMISSIONER JOHNS

MELBOURNE, 14 SEPTEMBER 2015

Application for Relief of Unfair Dismissal – genuine redundancy – identification of job made redundant – consultation – declined redeployment.

Introduction

[1] This decision is about whether the job performed by Hamit Ayberk (Applicant) was genuinely made redundant. Roche Diagnostics Australia Pty Ltd (Roche /Employer/Respondent) says it was a genuine redundancy. Mr Ayberk says it was not and consequently, on 6 March 2015, he made an application pursuant to s.394 of the Fair Work Act 2009 (FW Act) for a remedy for unfair dismissal.
[2] At the hearing conducted on 8 July 2015, the Applicant was represented by Mr Dirks from Just Relations Consultants and Roche was represented by Mr Murphy of Australian Business Lawyers. Permission was granted to each party to be represented because the Commission as presently constituted was satisfied that the matter was invested with sufficient complexity such that the matter would be proceed more efficiently if the parties were represented.

Background

[3] The parties filed in the Commission an Agreed Statement of Facts. The following matters were either contained in the Agreed Statement of Facts or otherwise not contested:

a) On or around 17 July 2000, the Applicant commenced employment with Ventana Medical Systems (Ventana).
b) The Applicant holds tertiary qualifications in science (Bachelor of Science with Honours).
c) In 2008, the Respondent purchased Ventana.
d) On 1 July 2008, the Applicant’s employment transferred from Ventana to the Respondent.
e) The Applicant’s role upon transfer was Applications Manager Asia Pacific, Tissue Diagnostics. The position was set out in his written contract of employment dated 16 June 2008. At that time he was based in Melbourne (Melbourne Role).
f) In 2010, the Applicant was offered an international assignment to Shanghai, People’s Republic of China (China Role). The assignment was subject to the terms of a letter dated 22 April 2010 and the Respondent’s Long Term International Assignments Policy. The assignment commenced on 1 May 2010 and the duration of the assignment was to be “approximately two years”.
g) By letter dated 19 December 2011, the Respondent extended the duration of the international assignment by another two years, fixing a contract end date of 30 April 2014.
h) Around November 2013, discussions commenced about moving the China Role to Singapore (Singapore Role). 1 The Applicant indicated he was not interested in moving to Singapore.2
i) Chinese government rules and requirements meant that the Applicant could not stay in China for more than five years 3 (therefore, noting that he had been there since about April 2010, he could not stay there beyond April 2015).
j) The international assignment was further extended by a year by letter dated 22 November 2013, with an end date of 30 April 2015.
k) In or around October 2014, 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: [2015] FWC 6414
Decision Date: 14 SEPTEMBER 2015

CaseChat Overview and Summary

In the case of Hamit Ayberk v Roche Diagnostics Australia Pty Ltd, the Fair Work Commission (FWC) was tasked with determining an application for relief of unfair dismissal. The applicant, Mr Ayberk, alleged that his dismissal by Roche Diagnostics Australia Pty Ltd was unfair, as it was a genuine redundancy. The dispute centred on whether the position Mr Ayberk held was indeed made redundant, the adequacy of consultation regarding the redundancy, and the opportunity for redeployment. The court had to assess if Roche had followed proper procedures in identifying the job made redundant and whether Mr Ayberk was appropriately consulted and offered alternative positions.

The legal issues before the FWC included whether Roche had correctly identified the redundancy situation, ensuring the job held by Mr Ayberk was genuinely redundant and not merely a pretext for termination. Additionally, the court needed to determine if Roche had fulfilled its obligation to consult with Mr Ayberk and if it had offered him a reasonable opportunity for redeployment in a different role within the company. These issues were pivotal in assessing whether the dismissal met the criteria for being considered fair under the applicable employment laws.

The FWC examined the evidence presented by both parties and found that Roche had adequately identified the redundancy situation, ensuring the position held by Mr Ayberk was genuinely redundant. The court acknowledged that Roche had conducted consultations with Mr Ayberk, providing him with information about the redundancy. However, the FWC determined that the consultation process was insufficient in terms of providing Mr Ayberk with a reasonable opportunity for redeployment in a different role. Despite this, the FWC concluded that the overall process adhered to the necessary legal standards, and Mr Ayberk's dismissal was fair. The application for relief of unfair dismissal was dismissed.

The final orders of the FWC dismissed the applicant's claim for unfair dismissal. The FWC found that Roche had correctly identified the redundancy and fulfilled its obligations in the redundancy process, despite the shortcomings in the redeployment consultation. This decision underscores the importance of following proper procedural steps in redundancy situations to ensure fairness and compliance with employment laws.

Orders