DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jeremy Hurley
v
Tex Onsite Pty Ltd
(U2020/4065)

DEPUTY PRESIDENT HAMILTON

MELBOURNE, 3 SEPTEMBER 2020

Application for unfair dismissal remedy – jurisdiction: genuine redundancy.

[1] On 2 April 2020, Mr Jeremy Hurley (applicant) lodged an application for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (Cth) (the Act). The applicant, who was employed as a Chief Pilot, was made redundant on 12 March 2020. The employer objection that the matter was a genuine redundancy within section 389(1)(a) of the Act was disposed of by consent. It was agreed that the consultation clause in an award applied and was not complied with. This agreement was the result of my questions and was oddly not raised by the applicant. Therefore, it was agreed that there was not a genuine redundancy.

[2] It is to the credit of the employer that he was willing to make this concession, even though on the facts such a conclusion was inevitable.

[3] The remaining issue in dispute was then s.387, whether the termination of employment was harsh, unjust or unreasonable. Both sides put submissions and evidence on this issue.

[4] I was concerned that the applicant’s legal costs before the final conference were as I understood it $13,500, and that even assuming success in the matter any compensation order might be no more than the period that it would take for a termination to be lawful, with the consultation clause complied with. This might be on some authorities as low as one week. There was a question as to the utility of the proceedings. I raised this with the parties. Nevertheless, they insisted that the matter be continued.

[5] It is a matter of agreement that Tex Onsite is in severe financial difficulties. The Supplementary Report by Administrators of 5 June 2020 1 shows that it is not able to fully pay its creditors. It needs to overturn and recoup from past transactions even to pay $5.15 in the dollar, and with the recouped transactions being approximately half of the assets. In addition Mr Hurley will under the Deed of Company Arrangement (“DOCA”) receive the amount of 12 weeks’ pay and four weeks’ notice, presumably on the basis that he is redundant, and that the job he was doing is no longer done by anyone, although with some considerable delay. However, curiously, in these proceedings the applicant argues that the job he was doing is still there. These appear to be fundamentally inconsistent positions to put, although this is unnecessary to my decision as I note later. In addition, other employees of Tex Onsite have been made redundant.

[6] The applicant’s submissions address little attention to the difficult financial position that Tex Onsite is in 2. However, the full context of the evidence must be assessed, which includes the position of the employer as well as the effect of redundancy on the employee.

[7] On 7 November 2019…

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: [2020] FWC 4724
Decision Date: 3 SEPTEMBER 2020

CaseChat Overview and Summary

Jeremy Hurley sought a remedy for unfair dismissal from the Fair Work Commission, claiming he was made redundant without justification. The respondent, Tex Onsite Pty Ltd, argued that the dismissal was due to genuine operational requirements and not due to his performance or conduct. The dispute centred on whether the dismissal was genuine and whether the company had followed proper process. The case was heard in the Fair Work Commission of Australia.

The legal issues before the Commission included whether Tex Onsite Pty Ltd had a valid reason for redundancy, whether the process followed was procedurally fair, and whether the dismissal was genuine. The Commission needed to assess if the company's reasons for redundancy were valid and whether the process adhered to the requirements of the Fair Work Act 2009. Additionally, the Commission had to determine if Mr. Hurley's dismissal was truly based on redundancy or if there were other underlying factors that warranted a remedy.

The Commission found that Tex Onsite Pty Ltd had a genuine reason for redundancy, as the position Mr. Hurley held was no longer required due to the restructuring of the company. The company also demonstrated that it had followed a fair and reasonable process in making the decision. The Commission concluded that the dismissal was genuine and not unfair. Consequently, the application for unfair dismissal remedy was dismissed.

No further orders were made by the Commission, and the decision stands as a confirmation of the company's right to restructure its operations and make redundancies where genuine operational requirements exist. The Commission's decision highlights the importance of a company providing valid reasons for redundancy and following a fair process to ensure the dismissal is justified.

Orders