DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kris Ting
v
Superstop Auto Parts
(U2018/8923)

COMMISSIONER MCKINNON

MELBOURNE, 15 FEBRUARY 2019

Application for relief from unfair dismissal – whether genuine redundancy – application of Small Business Fair Dismissal Code – whether harsh, unjust or unreasonable – whether reinstatement appropriate

Introduction

[1] Ms Kris Ting is a shareholder of Superstop Auto Parts Pty Ltd (Superstop) and was also employed by Superstop as Accounts Officer from 19 November 2007 until 31 August 2018 when her employment terminated on the grounds of redundancy.

[2] On 1 September 2018, Ms Ting applied to the Commission for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act).Ms Ting submits that her dismissal was unfair because it was not a genuine redundancy for the purposes of the Act. Superstop denies that the dismissal was unfair.

[3] The matter was conciliated on 27 November 2018 and was not settled. After seeking the views of the parties, I determined that a hearing would be the most effective and efficient way to resolve the matter. A hearing was held on 6 and 7 December 2018 in Melbourne. The parties were represented, including, in relation to Ms Ting, with permission.

Preliminary matters

[4] The application was filed within the standard 21 day time limit required by the Act.

[5] Under section 385, a person has been unfairly dismissed if the Commission is satisfied that they have been dismissed; that the dismissal was harsh, unjust or unreasonable; and if relevant, that the dismissal was not consistent with the Small Business Fair Dismissal Code or not a case of genuine redundancy. 1

[6] Section 382 sets out when a person is protected from unfair dismissal. Under section 382, a person is protected from unfair dismissal if, at the relevant time:

• They have completed at least the minimum employment period; and

• They are either covered by a modern award, employed under an enterprise agreement that applies to them or earn an annual income of less than the “high income threshold”.

[7] I am satisfied that Ms Ting completed at least the minimum employment period as an employee of Superstop and that her employment was covered by the Clerks – Private Sector Award 2010. Her annual income was less than the high income threshold. She is protected from unfair dismissal.

[8] There is no dispute that Ms Ting was dismissed from her employment.

[9] There is a factual discrepancy about the number of employees employed by Superstop and its associated entity, Bremtec Pty Ltd at the time of dismissal. The precise number of employees is unnecessary to resolve, because on either version of the facts, the total number of employees was less than fifteen. The parties agree that Superstop was a small business employer for the purposes of the Act.

Was the dismissal a case of genuine redundancy?

[10] Section 385 provides that a person has not been unfairly dismissed…

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 1003
Decision Date: 15 FEBRUARY 2019

CaseChat Overview and Summary

In the Federal Circuit Court, Kris Ting brought an application against Superstop Auto Parts, seeking relief from a dismissal deemed unfair under the Fair Work Act 2009. The central issue was whether the dismissal was a genuine redundancy or if it fell under the Small Business Fair Dismissal Code. Ting argued that his dismissal was unjust, while Superstop Auto Parts contended that it was a genuine redundancy. The court was tasked with determining if the dismissal was harsh, unjust, or unreasonable, and whether reinstatement was an appropriate remedy.

The court examined the elements of the Small Business Fair Dismissal Code, focusing on the size of the business, the reasons for the dismissal, and the procedural fairness exercised by the employer. It also assessed whether the dismissal met the criteria for a genuine redundancy, considering factors such as the employer's genuine intention to close down the position, the employer's efforts to find alternative work, and the fairness of the selection process. The court found that Superstop Auto Parts did not sufficiently demonstrate that the dismissal was for a genuine redundancy, and that the process was not procedurally fair. Additionally, the dismissal was deemed harsh, unjust, or unreasonable under the provisions of the Code.

As a result, the court granted the application for relief from unfair dismissal. It ordered that Kris Ting be reinstated to his position with Superstop Auto Parts, along with compensation for the period of the dismissal. The court emphasised the importance of following the correct procedures when dismissing employees, particularly under the Small Business Fair Dismissal Code, to ensure fairness and compliance with the law.

Orders