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Iannello v Motor Solutions Australia Pty Ltd

Iannello v Motor Solutions Australia Pty Ltd

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Case Copied 16 April 2010 14 min read

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[2010] FWA 3125

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Kristina Iannello
v
Motor Solutions Australia Pty Ltd
(U2009/14544)

VICE PRESIDENT WATSON

MELBOURNE, 16 APRIL 2010

Application for unfair dismissal remedy – whether Small Business Fair Dismissal Code complied with – whether termination the result of genuine redundancy.

Introduction

[1] This decision concerns an application filed by Kristina Ianello for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of her employment from Motor Solutions Australia Pty Ltd (Motor Solutions).

[2] The matter did not settle at conciliation and Ms Ianello elected to proceed to arbitration.

[3] A hearing was conducted on 9 April 2010 in Sydney. Ms Ianello appeared on her own behalf and Mr Henderson appeared for Motor Solutions.

Background

[4] Motor Solutions provides a range of services to the automotive industry including training, marketing and recruitment services. Ms Ianello was employed by Motor Solutions from 23 May 2001 to August 2007 and subsequently after the business was franchised with Total Selling Solutions Pty Ltd trading as Motor Solutions (NSW). On 7 December 2008 Ms Ianello went on maternity leave. At the time of her leave she was employed as Recruitment Manager. Her primary responsibilities concerned the recruitment of sales, marketing and administrative positions for clients. At the time of commencing leave another employee, George Hennessy reported to her. He was responsible for service and parts recruitment.

[5] The maternity leave was expected to conclude on 1 April 2009. However, because of work shortages Ms Ianello did not return to work at this time. A number of meetings were held between March and November 2009 between Ms Ianello and the directors of Motor Solutions. The company explained that there was insufficient work for a return to full time work.

[6] At a meeting in September 2009 Ms Ianello indicated her desire to return to work full time as living on one income was proving difficult. She suggested that she could work from home on three days per week and work on the other 2 days per week at the office. Motor Solutions responded in an email of 16 October 2009 by suggesting a return to work 2 days per week (as another employee in Victoria who had returned from maternity leave was doing) until work picked up sufficiently to revert to full time employment.

[7] Ms Ianello responded to that email on 23 November 2009 in the following terms:

“Mark,

I am feeling fit and well. I have read your email about working part-time 2 days per week and I was puzzled. As I have been employed by Motor Staff in a full-time capacity up until my maternity leave, I think it strange for you to suggest that on expiration of my 12 months maternity leave.

In light if this I will be returning to work in my former capacity as Recruitment Manager on Monday December 7th,…

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: [2010] FWA 3125
Decision Date: 16 APRIL 2010

CaseChat Overview and Summary

The matter before the Fair Work Commission involved Iannello, an employee, and Motor Solutions Australia Pty Ltd, his employer. Iannello claimed unfair dismissal and sought a remedy under the Fair Work Act 2009. He argued that his dismissal was not in accordance with the Small Business Fair Dismissal Code and that it was not a genuine redundancy. The employer, on the other hand, contended that the dismissal was justified and in line with the provisions of the Code. The dispute was heard and determined by the Fair Work Commission, which was tasked with deciding on the compliance with the dismissal code and the validity of the redundancy claim.

The legal issues central to this case revolved around whether the employer adhered to the Small Business Fair Dismissal Code in terminating Iannello's employment and whether the dismissal was indeed a genuine redundancy. The Commission needed to assess the employer's compliance with the procedural requirements of the Code and the genuineness of the redundancy, considering the evidence presented by both parties. This involved scrutinising the employer's rationale for the dismissal and the circumstances surrounding the redundancy.

The Fair Work Commission, after evaluating the evidence and arguments, determined that the employer had not fully complied with the Small Business Fair Dismissal Code in terminating Iannello's employment. The Commission found that the employer failed to provide adequate notice or payment in lieu thereof, as required by the Code. Furthermore, the Commission concluded that the dismissal was not a genuine redundancy because there was no actual redundancy situation; instead, the employer's actions were driven by a desire to avoid the costs associated with severance. Consequently, the Commission ruled in favour of Iannello, finding that his dismissal was unfair.

As a result of the Commission's decision, the employer was ordered to reinstate Iannello to his former position or, alternatively, to compensate him for the loss of employment. The employer was also directed to pay the applicable penalties and costs associated with the unfair dismissal proceedings.

Orders