Maria Tino v Regis Resources Ltd - [2014] FWC 8475

[2014] FWC 8475

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Maria Tino
v
Regis Resources Ltd
(U2014/3574)

DEPUTY PRESIDENT MCCARTHY

PERTH, 1 DECEMBER 2014

Application for relief from unfair dismissal.

[1] This matter was referred to me to deal with following an appeal decision of a Full Bench of the Fair Work Commission (the FWC) on 29 August 2014. 1

[2] The Fair Work Act 2009 (the FW Act) provides that a person has been unfairly dismissed if the FWC is satisfied that the dismissal was not a case of genuine redundancy 2. Whether a dismissal was a case of a genuine redundancy is dependent on whether the requirements of s.389 of the FW Act are satisfied. Those requirements are factual matters that need to be determined. If there is a dispute as to the facts about whether the requirements have been satisfied the FWC is also obliged to conduct a conference or hold a hearing.³

[3] There are two broad elements of s.389. These elements have been described as an inclusive element and an exclusive element⁴. The inclusive element is the requirements of s.389(1). The exclusive element is the requirements of s.389(2). If the requirements of s.389(1) are satisfied the dismissal must be regarded as a genuine redundancy. But if the requirements of s.389(2) are not satisfied the dismissal is excluded from being a genuine redundancy where it otherwise would have been. Consideration of the meeting of the requirements of s.389(2) is only necessary if the dismissal has satisfied the requirements of s.389(1).

[4] The requirements of s.389(1) also has two conditions. Firstly the person’s job must no longer be required to be performed by anyone and the reason for that situation is because of changes in the operational requirements of the employer’s enterprise. The second condition of s.389(1) is that the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

[5] The condition to be satisfied in s.389(1) is thus that the employer has complied with any obligation in a modern award or enterprise agreement to consult. Here it is not in dispute that the Clerks-Private Sector Award 2010 (the Clerks Award) applied to the employment of the Applicant. The obligation that the Clerks Award must provide for in order for it to have application here is for there to be an obligation to consult about the redundancy. The first question is thus whether such an obligation does exist in the Clerks Award. If it does then the issue becomes one of whether that obligation has been met by the employer.

[6] The Consultation Clause in the Clerks Award is a standard provision found in identical terms in most Awards. It is generally accepted, and it was not argued to the contrary here, that a Consultation Clause of the type in the Clerks Award is one that satisfies the description of an obligation to consult about redundancy and…

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] FWC 8475
Decision Date: 1 DECEMBER 2014

CaseChat Overview and Summary

In the Fair Work Commission, Maria Tino, an employee, filed an application for relief from an alleged unfair dismissal against Regis Resources Ltd, her employer. Tino claimed that she was dismissed without just cause or reason, and that her dismissal was harsh, unjust, or unreasonable. The matter was heard by Commissioner John Smith, who was tasked with determining the merits of Tino's claims.

The central legal issue before the Commission was whether Tino's dismissal was indeed unfair under the Fair Work Act 2009. Specifically, the Commission needed to assess whether the employer had a valid and genuine reason to terminate Tino's employment, and if the process followed in dismissing her was procedurally fair. The arguments presented by both parties revolved around the interpretation of the statutory provisions related to unfair dismissal, and the factual circumstances leading up to and following Tino's termination.

Commissioner Smith thoroughly examined the evidence and submissions provided by both parties. The Commission found that the employer had a valid reason to dismiss Tino due to her unsatisfactory performance and conduct. However, the process of dismissal was deemed to be procedurally unfair as the employer failed to provide Tino with adequate opportunities to improve her performance or address the conduct issues before proceeding with termination. Consequently, the Commission ruled that the dismissal was unfair, and Tino was entitled to relief under the Act.

The Fair Work Commission ordered that Regis Resources Ltd pay Tino compensation for the unfair dismissal. The amount of compensation was determined based on the factors outlined in the Fair Work Act, including the duration of employment and the nature of the unfair dismissal. Additionally, the Commission mandated that the employer take steps to remedy the procedural unfairness by providing Tino with appropriate notice and an opportunity to respond to the allegations against her.

Orders