Laura Toplass v BMM Productions Pty Ltd

[2023] FWC 3044

[2023] FWC 3044

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Application for an unfair dismissal remedy

Laura Toplass
v
BMM Productions Pty Ltd

(U2023/7436)

DEPUTY PRESIDENT SLEVIN SYDNEY, 22 NOVEMBER 2023

Application for an unfair dismissal remedy – whether dismissal was genuine redundancy. Dismissal not genuine redundancy. Dismissal Unfair. Compensation awarded.

1. Ms Laura Toplass has applied under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent to the application, BMM Productions Pty Ltd (BMM) contends that Ms Toplass was not unfairly dismissed because the dismissal was a case of genuine redundancy. I find that the dismissal does not meet the description of genuine redundancy in the Act and that Ms Toplass was unfairly dismissed. I have ordered BMM pay Ms Toplass compensation in the sum of $11,500.

1. The application was heard by way of conference and Ms Toplass represented herself. I granted BMM permission to be legally represented as BMM wished to raise a jurisdictional objection involving some complexity and legal representation would allow the matter to be dealt with more efficiently.

When can the Commission order a remedy for unfair dismissal?

1. Section 390 of the Act provides that the Fair Work Commission (the Commission) may order a person’s reinstatement, or the payment of compensation to a person if satisfied that the person was protected from unfair dismissal and the person has been unfairly dismissed. Section 382 provides that a person is protected from unfair dismissal if the person is an employee who has completed a period of employment of at least the minimum employment period and the person is covered by a modern award, an enterprise agreement applies to the person, or the person earns less than the high-income threshold. Section 385 relevantly provides that a person has been unfairly dismissed if the Commission is satisfied of four matters: the person has been dismissed; the dismissal was harsh, unjust or unreasonable; the dismissal was not consistent with the Small Business Fair Dismissal Code; and the dismissal was not a case of genuine redundancy.

1. It was not contested, and I am satisfied, that Ms Toplass is protected from unfair dismissal for the purposes of s 382 as she was employed for longer than the minimum employment period and covered by a modern award. It was not contested, and I am satisfied, that the dismissal here was not consistent with the Small Business Code as the Code did not apply. So, the questions for determination under s 385 in this case are whether the dismissal was a case of genuine redundancy and whether it was harsh, unjust or unreasonable.

Background

1. Ms Toplass was employed on 31 January 2022 as a Model Manager. At the time of dismissal, she was working part-time four days per week as Senior Model Agent - Curve. On 23 July 2023, Ms Toplass was called to a meeting with Ms Chelsea Bonner, BMM’s Chief Executive Officer, and Katherine Taylor, Director of Operations. Ms Toplass was given no notice…