Janet Dawod v Universal LED Lighting Pty Ltd

[2017] FWC 5442

[2017] FWC 5442

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Janet Dawod
v
Universal LED Lighting Pty Ltd
(U2017/7302)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 20 OCTOBER 2017

Ex tempore decision of 19 October 2017 – application for an unfair dismissal remedy – valid reason to terminate – not case of genuine redundancy - lack of any consultation

[1] This is the edited text of an ex tempore decision made in transcript during proceedings on 19 October 2017.

[2] Ms Janet Dawod has applied for an unfair dismissal remedy in relation to the termination of her employment by the respondent, Universal LED Lighting Pty Ltd on 16 June 2017.

[3] I am satisfied that the respondent is a small business employer as defined by the Fair Work Act 2009 (Cth) (the FW Act).

[4] While the applicant commenced employment with the respondent on 1 November 2016, I am satisfied that her previous employment with associated entities of the respondent means that she had completed the required qualifying period when she was dismissed.

[5] I am satisfied that the respondent dismissed the applicant because, as its Director, Mr White put it, ‘they could no longer afford to pay her wages’. It is clear from the evidence that the business was haemorrhaging money and had severe problems, both with regard to cash flow and profitability. I also note that the respondent has not filled the applicant’s job and that her duties – to the extent that they are being performed at all – have been distributed amongst other employees.

[6] I have considered whether the dismissal could be regarded as a ‘case of genuine redundancy’ as that term is defined by the FW Act.

[7] While I am satisfied that the employer no longer required the applicant’s job as Sales Promotion and Coordination Officer to be performed by anyone because of operational requirements of the business, and there was no reasonable prospect of the applicant being redeployed, I am not satisfied that the respondent complied with the consultation requirements in the Commercial Sales Award 2010 which covered the applicant’s employment. That is a necessary condition for a dismissal to be a case of genuine redundancy, as defined by the FW Act.

[8] The Commercial Sales Award requires that where an employer has made a definite decision to introduce major changes that are likely to have significant effects on an employee (which includes the termination of his or her employment), the employer must notify the employee affected by the proposed changes, and discuss with that employee the effect of such changes and any measures to avert or mitigate those effects.

[9] That did not happen in this case. It is clear that there was no discussion at all between the respondent and the applicant about the possibility that her job might be made redundant.

[10] I am satisfied therefore that the applicant’s dismissal was not a case of genuine redundancy as defined by the FW Act.

[11] Moreover, while the respondent had a valid reason to terminate the applicant’s employment, the lack of any consultation means that none of the procedural requirements of the FW Act were met, thereby rendering the dismissal unfair.

[12] Having decided that the dismissal was unfair, I turn to the issue of remedy.

[13] In terms of a remedy I have to decide how long the applicant would have likely remained in employment if she had not been dismissed on 16 June 2017.

[14] While this is always a slightly speculative matter, I am satisfied that the applicant would have remained with the respondent for a period of no more than about four weeks – even if there had been a proper procedure followed.

[15] Accordingly, I order the respondent to pay the sum of $4,000 (approximately four week’s pay minus the two weeks’ payment in lieu of notice already paid) in compensation to the applicant, plus 9.5% superannuation.

[16] I note that this sum is in addition to any other moneys the respondent owes the applicant, including superannuation and any outstanding annual leave.

SENIOR DEPUTY PRESIDENT

Appearances:

J Dawod, the applicant, in person

P Safi, solicitor of Fortis Law Group, appeared for the Respondent

Hearing details:

2017

Sydney

19 October

Printed by authority of the Commonwealth Government Printer

<Price code A, PR596978>