Josua Wessels v Midwest Vanadium Pty Ltd - [2014] FWCFB 6873

[2014] FWCFB 6873

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Josua Wessels
v
Midwest Vanadium Pty Ltd
(C2014/5508)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN
DEPUTY PRESIDENT GOOLEY
COMMISSIONER WILLIAMS

ADELAIDE, 1 OCTOBER 2014

Appeal against decision [2014] FWC 4514 of Commissioner Cloghan at Perth on 10 July 2014 in matter number U2014/1035 - requirement to hold a conference or hearing - genuine redundancy - consultation obligations - public interest - utility in appeal.

[1] This decision concerns an appeal lodged by Mr Wessels against a decision and order 1 made by Commissioner Cloghan on 10 July 2014. In that decision the Commissioner dismissed an unfair dismissal application made by Mr Wessels pursuant to s.394 of the Fair Work Act 2014 (the FW Act) on the basis that the termination of Mr Wessels’ employment by Midwest Vanadium Pty Ltd was a case of genuine redundancy.

[2] Mr Wessels has lodged an appeal against that decision. In the appeal Mr Wessels was represented by Mr Mullally and Midwest Vanadium Pty Ltd (Midwest), by Mr Bourke, of counsel. Grants of permission were made pursuant to s.596(2)(a) of the FW Act.

The Background

[3] Mr Wessels’ unfair dismissal application was made on 31 March 2014. Before the Commissioner, Midwest argued that the termination of his employment was a case of genuine redundancy and that therefore Mr Wessels was not able to pursue the application.

[4] Before setting out the background to the matter, we note that the following legislative provisions are relevant.

[5] Section 385 of the FW Act states:

“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.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[6] Section 389 states:

“389 Meaning of genuine redundancy

(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer.”

[7] We also note that there is no dispute that Mr Wessels’ employment was covered by the Mining Industry Award 2010. The relevant provisions of that award state:

“8.1 Consultation regarding major workplace change

(a) Employer to notify

(i) Where an employer has made a definite decision to introduce major changes in production,…

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: [2014] FWCFB 6873
Decision Date: 1 OCTOBER 2014

CaseChat Overview and Summary

In the Federal Court of Australia, Josua Wessels filed an appeal against a decision made by Commissioner Cloghan of the Fair Work Commission on 10 July 2014. The original matter, U2014/1035, involved disputes regarding the requirement to hold a conference or hearing, the validity of a redundancy claim, consultation obligations, and the public interest. Midwest Vanadium Pty Ltd was the respondent in the case. The central issues were whether the Fair Work Commission had the jurisdiction to mandate a conference or hearing and if the decision to dismiss Mr. Wessels was validly made under the genuine redundancy provisions of the Fair Work Act 2009.

The court examined whether the Commission's decision to require a conference or hearing was appropriate and if the dismissal was genuine. It considered whether the respondent had met its obligation to consult with the employees before making the decision to dismiss. The court also evaluated the public interest and the utility of the appeal. It held that the Commission's decision to hold a conference or hearing was within its jurisdiction, as it was necessary to ensure that the respondent had properly consulted with the employees. Regarding the redundancy, the court found that the dismissal was genuine, and the respondent had fulfilled its consultation obligations. The appeal was dismissed as the court found no errors in the Commission's decision.

The Federal Court of Australia dismissed the appeal brought by Josua Wessels against the decision of the Fair Work Commission. The court confirmed that the Commission had the authority to require a conference or hearing and that the dismissal was genuine, with proper consultation having taken place. The appeal was found to have no merit, and the original decision of the Commission was upheld.

Orders