DECISION

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

Jennifer Wardle
v
Virgin Australia Airlines Pty Ltd (Administrators appointed)
(U2020/1281)

COMMISSIONER CAMBRIDGE

SYDNEY, 28 JULY 2020

Application for relief from unfair dismissal - jurisdictional objection - ss. 385 and 396 of Fair Work Act 2009 - whether dismissal was a case of genuine redundancy - s. 389 meaning of genuine redundancy - elements which constitute genuine redundancy - genuine redundancy established - jurisdictional objection upheld.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on 6 February 2020. The application was made by Jennifer Wardle (the applicant) and the respondent employer is Virgin Australia Airlines Pty Ltd (Administrators appointed) (the employer).

[2] The application indicated that the date that the applicant’s dismissal took effect was 17 January 2020. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act.

[3] The matter was not resolved at conciliation. The employer raised a jurisdictional objection to the application on the basis that the dismissal was alleged to be a case of genuine redundancy (the genuine redundancy objection). The matter was the subject of a Pre-Hearing Conference/Conciliation by telephone proceedings held on 26 March 2020, at which time the Commission made Directions for the Parties to file and serve all material upon which each would rely in respect to the determination of the genuine redundancy objection.

[4] Subsequently, the employer and the applicant have provided their respective materials in accordance with Amended Directions that were issued on 7 May 2020, and which culminated on 26 June 2020, with each side confirming agreement to have the genuine redundancy objection determined upon the filed documentary material and without the need for any formal Hearing.

[5] The application was the subject of a jurisdictional challenge made by the employer upon the assertion that the applicant’s dismissal was a case of genuine redundancy. Consequently, the employer advanced a jurisdictional challenge to the application relying upon the requirements of subsection 396 (d) of the Act which stipulates that the Commission must decide whether the dismissal was a case of genuine redundancy before any consideration of the merits of the application.

Background

[6] On 28 August 2019, the employer announced it’s 2019 financial year results which included an Underlying Loss Before Tax of $71.2 million, and a total annual loss of $315.4 million. In a message from the employer’s Chief Executive Officer, Paul Scurrah, the employer announced a series of measures that it would implement to redress its financial losses. One of these measures was an organisational restructure described as a “rightsizing program” that aimed to reduce 750 corporate and Head Office roles during FY20 which was estimated to reduce costs by $75 million.

[7] On 21 November 2019, as part of the previously announced “rightsizing program”, the employer commenced a consultation…

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

AGLC: Jennifer Wardle v Virgin Australia Airlines Pty Ltd (Administrators appointed) [2020] FWC 3937
Case: [2020] FWC 3937
Decision Date: 28 JULY 2020

CaseChat Overview and Summary

The case of Jennifer Wardle versus Virgin Australia Airlines Pty Ltd (Administrators appointed) involved an application for relief from unfair dismissal. The applicant sought to challenge her dismissal on the grounds that it was unfair. The case was heard by the Fair Work Commission, where the primary issue was whether the dismissal was a case of genuine redundancy, as defined under the Fair Work Act 2009. The jurisdictional objection centred on whether the Commission had the authority to hear the application given the circumstances of the dismissal.

The central legal issue revolved around the interpretation and application of section 389 of the Fair Work Act, which defines genuine redundancy. The applicant contended that her dismissal was not a genuine redundancy as it did not meet the statutory criteria. Specifically, the applicant argued that there was no genuine operational reason for her dismissal and that it was part of a broader restructuring process that did not align with the requirements of genuine redundancy. The respondent, the administrators of Virgin Australia Airlines, maintained that the dismissal was indeed a genuine redundancy, as it was necessitated by legitimate operational reasons.

The Commission found that the elements which constitute genuine redundancy, as set out in section 389, were satisfied in this case. The evidence presented demonstrated that the dismissal was part of a genuine restructuring process aimed at addressing operational inefficiencies and financial difficulties. The decision to dismiss was not influenced by discriminatory or retaliatory motives, and there was a genuine need to reduce the workforce to maintain the business's viability. Consequently, the jurisdictional objection was upheld, and the application for relief from unfair dismissal was dismissed. The Commission concluded that it had the requisite jurisdiction to hear the matter and that the dismissal was indeed a genuine redundancy.

The final orders of the Commission were that the application for relief from unfair dismissal was dismissed, and the jurisdictional objection was upheld. The Commission found that the dismissal was a genuine redundancy, and therefore, the applicant's claim for unfair dismissal was not substantiated. The administrators of Virgin Australia Airlines were absolved of any liability for unfair dismissal, and the application was dismissed in its entirety.

Orders