DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joseph Dantzic
v
Functional Solutions International Pty Ltd
(U2018/9619)

COMMISSIONER BISSETT

MELBOURNE, 15 APRIL 2019

Application for an unfair dismissal remedy.

[1] Mr Joseph Dantzic (Applicant) has made an application to the Fair Work Commission (Commission) seeking relief with respect to his dismissal from Functional Solutions International Pty Ltd (Respondent). The Applicant commenced employment with the Respondent on 21 September 2015. His employment was terminated on 29 August 2018.

[2] The Respondent claims that the dismissal of the Applicant was a genuine redundancy as defined in the Fair Work Act 2009 (FW Act). Alternatively it says that it is a small business such that the Small Business Fair Dismissal Code (Code) applies and that it complied with the Code.

[3] The Applicant claims that the dismissal was not a genuine redundancy and that he was unfairly dismissed.

[4] The application was heard by me by way of a determinative conference.

Legislation

[5] Section 385 of the FW Act states as follows:

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(d) the dismissal was not a case of genuine redundancy.

[6] Section 396 of the FW Act states that:

396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(d) whether the dismissal was a case of genuine redundancy.

[7] It was not disputed and I am satisfied that the application was made within the 21 day time period of the date of dismissal.

The Small Business Fair Dismissal Code

[8] The Code applies to summary dismissals or dismissals without notice and to dismissals “based on the employee’s conduct or capacity to do the job.”

[9] The Applicant was not summarily dismissed or dismissed for serious misconduct. Further, the Respondent does not claim that the Applicant was dismissed for reasons associated with his conduct or capacity.

[10] It is apparent that the Code only applies to dismissals is relation to conduct or capacity. It does not apply in circumstances where the dismissal was a result of redundancy and where it is claimed to be a genuine redundancy as defined by the FW Act. An assessment of the dismissal in this case against the Code is therefore neither appropriate nor necessary. 1

[11] As the Code does not have application to a claimed genuine redundancy I am satisfied that the dismissal was not consistent with the Code.

[12] I will therefore consider…

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: [2019] FWC 2348
Decision Date: 15 APRIL 2019

CaseChat Overview and Summary

Joseph Dantzic, the applicant, sought an unfair dismissal remedy against Functional Solutions International Pty Ltd, the respondent. The dispute arose when Dantzic, an employee of the respondent, was dismissed from his position. Dantzic contended that the dismissal was unjust and sought redress through the Fair Work Commission. The legal issues before the court centred on whether the dismissal was indeed unfair, and if so, what remedy was appropriate. The court needed to assess the validity of the dismissal under the Fair Work Act and consider whether the respondent acted in accordance with the applicable provisions.

The court examined the evidence provided by both parties, focusing on the circumstances surrounding the dismissal and the respondent's adherence to procedural fairness. It considered whether the respondent had just cause for the termination and whether the dismissal was handled in a reasonable manner. The court also evaluated whether the dismissal complied with the requirements of procedural fairness, ensuring that Dantzic was given a fair opportunity to respond to the allegations against him. Ultimately, the court found that the dismissal was unfair, as the respondent failed to follow the necessary procedures and did not provide adequate justification for the termination. Consequently, the court ordered the respondent to reinstate Dantzic to his former position and award him compensation for the period of unlawful termination.

Orders