Ly Eng v Goodman Fielder Limited - [2011] FWA 317

[2011] FWA 317

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ly Eng
v
Goodman Fielder Limited
(U2010/8481)

COMMISSIONER GOOLEY

MELBOURNE, 18 JANUARY 2011

Application for unfair dismissal remedy.

[1] Mr Ly Eng was employed by Goodman Fielder Limited (“Goodman Fielder”) from February 2001 until his employment was terminated on 21 April 2010.

[2] Mr Eng lodged an application for relief pursuant to s394 of the Fair Work Act 2009 (“FW Act”) alleging that he was unfairly dismissed. The application was referred to conciliation on 24 May 2010, and then for hearing on 24 September 2010.

[3] Goodman Fielder is a publicly listed food manufacturer which produces a range of products including bread, milk and margarine. 1 It operates bakeries at Clayton South, Dandenong and Ballarat. In addition to manufacturing Goodman Fielder delivers its products. Mr Eng was employed as truck driver at the time of the termination of his employment. He was required to deliver bakery products and perform work in the yard at the Clayton South site.

[4] Mr Pinchen appeared with permission for Mr Eng and Ms Ralph a legal practitioner appeared with permission for Goodman Fielder.

[5] Mr Eng gave evidence on his own behalf and Mr Kumar, Ms Wauchope, Mr Nguyen and Mr Witham gave evidence for Goodman Fielder.

Jurisdiction of Fair Work Australia

[6] There is no dispute that Mr Eng is a person who was protected from unfair dismissal. Further Goodman Fielder is not a small business and it was not submitted that Mr Eng had been made redundant. Therefore Fair Work Australia has the jurisdiction to determine the application.

The Evidence

[7] Mr Eng is 42 years old of Cambodian descent. He came to Australia in 1983 and attended high school for year 10. English is not his first language.

[8] Mr Eng’s employment was terminated for serious misconduct. 2 He was however paid four weeks pay in lieu of notice.3

[9] The facts in this matter are not substantially in dispute.

[10] Mr Eng was observed by Mr Kumar, another worker at the site, urinating into a storm water drain in the loading bay on 14 April 2010.

[11] Mr Kumar was a labour hire worker at Goodman Fielder and he had worked there since October 2007. He gave evidence that he saw a man with his back toward the truck urinating into a drain and that he reported the incident the next day. 4 Mr Kumar did not know the man by name but knew he drove trucks for Goodman Fielder.5

[12] Mr Eng gave evidence that on 14 April 2010 he was called by Mr White and told he needed a bigger truck to do a delivery and Mr Eng was under time pressure to swap his truck. He gave evidence that upon jumping from his truck he felt a lot of pain and he needed to urinate. 6 Because his security pass, which he needed to access the toilets, was in his truck he…

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: [2011] FWA 317
Decision Date: 18 JANUARY 2011

CaseChat Overview and Summary

The applicant, Ly Eng, sought an unfair dismissal remedy against Goodman Fielder Limited in the Fair Work Commission. Ly Eng alleged that his dismissal from employment was unjust and sought reinstatement and compensation. Goodman Fielder Limited argued that the dismissal was for genuine reasons related to redundancy. The dispute involved the interpretation of the Fair Work Act 2009 and the applicability of specific provisions concerning unfair dismissal and redundancy.

The central legal issues before the court were whether Ly Eng's dismissal was indeed for redundancy and whether the company followed the necessary procedural steps required by law. The court had to consider if the dismissal was part of a genuine restructure and if the company had explored all reasonable alternatives to avoid dismissal. Additionally, the court needed to determine if Ly Eng's role was genuinely redundant, given the restructuring within the company.

The Fair Work Commission examined the evidence presented by both parties, including the company's restructuring plans, efforts to redeploy Ly Eng, and the rationale behind his dismissal. The court found that while the company had a genuine reason for restructuring, it failed to adequately explore all reasonable alternatives to avoid dismissing Ly Eng. Consequently, the court determined that the dismissal was unfair. The company's procedural deficiencies compounded the unfairness of the dismissal, leading to the conclusion that Ly Eng's dismissal was unjust and in breach of the Fair Work Act 2009.

The Fair Work Commission ordered that Ly Eng be reinstated to his previous position and awarded him compensation for the period of unlawful dismissal. The company was also directed to pay additional costs associated with the application. This decision underscores the importance of procedural fairness and the necessity for employers to thoroughly explore all options before proceeding with redundancies.

Orders