DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jaroslav Sikora
v
Sleepeezee Bedding Australia Pty Ltd
(U2015/4746)

DEPUTY PRESIDENT GOSTENCNIK

ADELAIDE, 8 SEPTEMBER 2015

Application for relief from unfair dismissal; redundancy; failure to consult; dismissal harsh and therefore unfair; reinstatement inappropriate; compensation appropriate; compensation ordered.

Introduction

[1] Jaroslav Sikora (the Applicant) was dismissed from his employment of nearly 22 years with Sleepeezee Bedding (Aust) Pty Ltd (the Respondent) on redundancy grounds. The dismissal took effect on 24 March 2015. On the termination of the employment the Applicant received a payment in lieu of notice, together with a payment representing his redundancy entitlement under the National Employment Standards (NES), and payments representing his accrued entitlements and outstanding wages. The Respondent told the Applicant in a termination letter incorrectly dated 24 April 2015 1 that, as a result of an economic downturn and the Respondent’s operational requirements, the Applicant’s position was no longer required, and as a consequence his employment was terminated.2

[2] On 10 April 2015, the Applicant applied under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. Turning first to deal with the initial matters which must be decided before the merits of an application are considered. 3 It is not in dispute, and I find that:

The application was made within the time prescribed in s.394(2);

The Applicant was, at the date of his dismissal, protected from unfair dismissal within the meaning of s.382 in that the Applicant was an employee of the Respondent who had completed a period of employment with the Respondent which was greater than the minimum period of employment as set out in s.383(a); and

the Manufacturing and Associated Industries and Occupations Award 2010 (the Award) covered the Applicant in his employment with the Respondent;

The Respondent was not a small-business employer within the meaning of the Act and so the Small Business Fair Dismissal Code did not apply; and

The dismissal was effected for reasons of redundancy, but as will become clear below, the dismissal of the Applicant was not a case of genuine redundancy within the meaning of s.389 of the Act.

[3] I have decided that the Applicant’s dismissal was harsh and therefore unfair. These are my reasons for that conclusion.

Factual background, context and findings

[4] The Respondent conducts a business that involves the importation, distribution and manufacture of mattresses. It is a wholesaler of these products. 4The Respondent is a family-owned company. Vasilios (Bill) Mantzis gave evidence in the proceeding before me. He and his brother Konstantinos Mantzis are the only directors of the company.5 Melissa Darling also gave evidence in the proceeding before me. She is employed by the Respondent in the position of Business Manager.6

[5] The Applicant was a long serving production employee of the Respondent. He commenced his employment with the Respondent on or about 7 September 1993 and continued in that employment until his dismissal by reason of redundancy on 24 March 2015. The…

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 Jaroslav Sikora v Sleepeezee Bedding Australia Pty Ltd

Details

AGLC: Jaroslav Sikora v Sleepeezee Bedding Australia Pty Ltd [2015] FWC 6115
Case: [2015] FWC 6115
Decision Date: 8 SEPTEMBER 2015

CaseChat Overview and Summary

Jaroslav Sikora filed an application for relief from unfair dismissal against Sleepeezee Bedding Australia Pty Ltd, claiming his dismissal was unfair due to the employer's failure to consult with him prior to making the decision. The case was heard in the Fair Work Commission, Australia's industrial relations tribunal. Mr. Sikora argued that his dismissal was a redundancy, but the employer did not follow the necessary consultation processes, rendering the dismissal harsh, unjust, and therefore unfair. Furthermore, he contended that the employer had failed to take reasonable steps to find him alternative employment, which compounded the unfairness of his dismissal.

The legal issues before the Commission included whether Mr. Sikora's dismissal was indeed a redundancy, whether the employer had failed to consult with him as required by law, and whether the dismissal was harsh, unjust, or unreasonable. The Commission had to determine if the employer's actions warranted a finding of unfair dismissal and, if so, what remedy would be appropriate. The Fair Work Act 2009 was the primary legislative framework guiding the Commission's decision.

The Commission found that Mr. Sikora's dismissal was indeed a redundancy but that the employer had not properly consulted with him, which was a breach of the procedural fairness requirements. The Commission concluded that the failure to consult rendered the dismissal harsh, unjust, and therefore unfair. Reinstatement was deemed inappropriate as the employer had already undergone significant changes and could not guarantee the continuation of the position. Instead, the Commission ordered compensation for Mr. Sikora, determining that this was the most appropriate remedy given the circumstances.

Orders