DECISION

Fair Work Act 2009
s 394—Unfair dismissal

Maree O’Flaherty
v
Clear Dynamics Pty Ltd t/a Clear Dynamics
(U2020/4713)

DEPUTY PRESIDENT SAMS

SYDNEY, 9 OCTOBER 2020

Termination of employment – application for an unfair dismissal remedy – Senior Business and Technology Consultant – impact on business due to COVID-19 pandemic – steps taken to minimise adverse effects – redundancy of applicant – whether applicant’s dismissal a case of genuine redundancy (s 389 of the Act) – jurisdictional objection – whether applicant’s job no longer required to be performed by anyone – appropriate consultation – redeployment options considered but not appropriate – jurisdictional objection made out – applicant’s dismissal a case of genuine redundancy – no jurisdiction – application dismissed.

BACKGROUND

[1] Ms Maree O’Flaherty commenced employment with Clear Dynamics Pty Ltd t/a Clear Dynamics (‘Clear Dynamics’, the ‘Company’ or the ‘respondent’) on 21 January 2019 as a Senior Business and Technology Consultant. Ms O’Flaherty was employed on a part time basis (3 days a week) under the Professional Employees Award 2010 (the ‘Award’) on a pro-rated salary of $144,000 per annum. Clear Dynamics is engaged in the computer software industry and employs 37 persons.

[2] On 24 March 2020, Ms O’Flaherty was notified that her employment was to be terminated for reasons of redundancy, in a meeting with Mr Matthew Talbot, Chief Commercial Officer (‘CCO’), and Ms Roslyn Hames, Director and Chief Operations Officer (‘COO’). A letter confirming her termination reads as follows:

‘Dear Maree,

Confirmation of Redundancy

We refer to our meeting on Thursday 19th March.

At this meeting we again provided an overview of the current position, summarised the matter to date, and sought your further comments and proposals in relation to this matter.

We have since also confirmed that, having reviewed other areas within the business, there are currently no vacancies or opportunities for redeployment within the business.

Consequently, we confirm that your position is redundant, effective 24th March 2020.

As a result of this redundancy, you will be entitled to the following:

• $11,046.56 (before tax) redundancy pay;

• $5,523.28 (before tax) pay in lieu of notice;

• $2,761.64 in respect of 1 week pay pursuant to clause 23.3 of your contract;

• and Accumulated statutory and contractual entitlements up to and including termination.

As per your request, we’ve agreed to waive the clause 24.2 of your contract. We are also more than happy to provide you with a reference.

We sincerely thank you for your efforts to date and hope that you appreciate that our decision to restructure Clear operations has been made to ensure the future success of the business.

Please contact us if you wish to discuss further.

Yours Sincerely,

Matthew Talbot’

I note that Cl 24.2 referred to above is a post termination restraint clause.

[3] On 13 April 2020, Ms O’Flaherty (hereafter the ‘applicant’) filed an application, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’) seeking orders from the Fair Work…

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: [2020] FWC 4564
Decision Date: 9 OCTOBER 2020

CaseChat Overview and Summary

The applicant, Maree O'Flaherty, sought a remedy for unfair dismissal by Clear Dynamics Pty Ltd, who terminated her employment as a Senior Business and Technology Consultant. The impact of the COVID-19 pandemic on the business was a significant factor in the decision to terminate her employment, with the company implementing measures to minimise the adverse effects. Despite these efforts, the applicant's position was deemed redundant. The central issue before the court was whether the dismissal was a case of genuine redundancy under section 389 of the relevant Act.

The court considered whether the applicant's position was no longer required to be performed by anyone, and whether appropriate consultation and redeployment options were considered. Clear Dynamics argued that the applicant's job had become redundant due to the pandemic's impact, and that all possible measures, including redeployment, had been explored without success. The court found that the company had made out a jurisdictional objection, confirming that the applicant's role was genuinely redundant, and that all reasonable steps had been taken. Consequently, the court held that it had no jurisdiction to hear the application for unfair dismissal, and dismissed the application.

The dismissal of the applicant's case hinged on the company's demonstration that the applicant's role had become redundant, and that all reasonable steps to mitigate the impact, including redeployment, had been exhausted. The court was satisfied that the company had met its burden of proof, establishing that the applicant's role was no longer required, and that no other position could be offered. The jurisdictional objection was upheld, and the court found no grounds for an unfair dismissal remedy.

Orders