Jacqueline Clare v The Bet Deck Pty Ltd - [2023] FWC 2309

[2023] FWC 2309

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jacqueline Clare
v

The Bet Deck Pty Ltd

(U2023/4865)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 11 SEPTEMBER 2023

Application for an unfair dismissal remedy – jurisdictional objection – genuine redundancy – failure to comply with consultation obligations – dismissal not unfair – application dismissed.

Ms Clare was employed as a Trader by The Bet Deck Pty Ltd (The Bet Deck) until her dismissal on 29 May 2023. The Bet Deck accepts that it did not consult with Ms Clare prior to her dismissal but contends that in all other respects her dismissal was a genuine redundancy within the meaning of s 389 of the Fair Work Act 2009 (Cth) (Act). The Bet Deck also contends that it complied with the Small Business Fair Dismissal Code in relation to Ms Clare’s dismissal. Ms Clare denies those assertions and contends that her dismissal was harsh, unjust and unreasonable.

Ms Clare gave evidence at the hearing, as did Mr Scott Cantlon, Ms Briony Young, and Mr Patrick McInerney. The Bet Deck adduced evidence from Mr Jeremy Turner, Managing Director.

Initial matters to be considered

Section 396 of the Act sets out four matters which I am required to decide before I consider the merits of Ms Clare’s unfair dismissal application.

There is no dispute between the parties and I am satisfied on the evidence that:

(a)the application was made within the period required in s 394(2) of the Act; and
(b)Ms Clare is a person protected from unfair dismissal.

As to the third initial matter which I am required to consider, The Bet Deck contends that Ms Clare’s dismissal was consistent with the Small Business Fair Dismissal Code. Ms Clare opposes this contention.

As to the fourth initial matter which I am required to consider, there is a dispute between the parties regarding whether Ms Clare’s dismissal was a genuine redundancy. I will address this issue first.

Genuine redundancy

Section 389 of the Act defines genuine redundancy as follows:

“389 Meaning of genuine redundancy
(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.”

“Associated entity” has the meaning given by s 50AAA of the Corporations Act 2001 (Cth).

The employer no longer required the employee’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise (s 389(1)(a))

It is necessary to determine whether…

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 Jacqueline Clare v The Bet Deck Pty Ltd

Details

AGLC: Jacqueline Clare v The Bet Deck Pty Ltd [2023] FWC 2309
Case: [2023] FWC 2309
Decision Date: 11 SEPTEMBER 2023

CaseChat Overview and Summary

In Jacqueline Clare v The Bet Deck Pty Ltd, the Fair Work Commission considered whether the dismissal of Ms Clare by The Bet Deck was unfair. Ms Clare argued that her dismissal was harsh, unjust or unreasonable. The Bet Deck contended that her dismissal was a genuine redundancy. The Commission found that The Bet Deck did not comply with its consultation obligations under the Clerks – Private Sector Award 2020 (Clerks Award), and therefore Ms Clare's dismissal was not a genuine redundancy within the meaning of s 389 of the Fair Work Act 2009 (Cth) (Act). Consequently, the Commission concluded that Ms Clare's dismissal was not harsh, unjust or unreasonable, and dismissed her unfair dismissal application. The Commission noted that while The Bet Deck had failed to consult with Ms Clare, this did not necessarily mean the dismissal was unfair. The weight to be given to the failure to consult depended primarily on the degree to which the absence of proper consultation led to any unfairness in practice. In the particular circumstances of this case, the Commission found that if consultation had occurred, it would have made no difference to the ultimate outcome, as there was no realistic prospect of redeployment or any other step being taken to prevent the termination of Ms Clare's employment on the grounds of redundancy.

Orders