DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Anderson
v
Programmed Industrial Maintenance Pty Ltd
(U2020/15766)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 13 JULY 2021

Application for an unfair dismissal remedy – Applicant a labour hire employee contracted to a particular client site – dismissal not a genuine redundancy but access to client site withdrawn – dismissal not unfair – application dismissed.

[1] On 9 December 2020, Mr Mark Anderson made an application to the Fair Work Commission for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent to Mr Anderson’s unfair dismissal application is Programmed Industrial Maintenance Pty Ltd (PIM).

[2] PIM filed a Form F3 – Employer Response (Form F3)on 18 December 2020 objecting to Mr Anderson’s application on the basis that the dismissal on 19 November 2020 was a case of genuine redundancy and when the matter did not settle at a staff conciliation held on 12 January 2021, it was allocated to me for determination. My directions issued on 18 January 2021 included requirements for the parties to file and serve their outlines of argument, statements and documents on both the jurisdictional objection and the merits of the application. A member assisted conciliation on 1 March 2021 did not resolve the matter.

[3] I granted both parties permission to be legally represented and determined that it was appropriate for the factual disputes between them to be resolved through a hearing, which was conducted on 17 and 18 March 2021 and 18 May 2021.

[4] Mr Anderson gave evidence, as did the following witnesses he called:

• Mr Josh Liley;

• Mr Ron May; and

• Mr Brenton Smethhurst.

[5] PIM’s witness evidence came from the following:

• Mr Benjamin Cooke; and

• Mr Kenny Babington.

[6] In addition, Mr Anderson tendered a witness statement from Mr Darcy Long but Mr Long was not required for cross examination. Mr Matthew Morrow, Reliability Team Leader for Bega Dairy and Drinks (formerly Lion Dairy and Drinks (LDD)), gave evidence on 18 May 2021. Mr Morrow had been ordered to attend for this purpose following an application made on behalf of Mr Anderson.

[7] A witness statement was filed on behalf of Mr Morrow on 14 May 2021. It was objected to by PIM. I advised the parties that I would not read the Mr Morrow’s statement until I heard and considered PIM’s objections to Mr Morrow’s statement on 18 May 2021. At that time, I determined I would admit certain parts of his witness statement. In addition, further evidence from Mr May, Mr Cooke and Mr Babington was received that day.

Orders for Production

[8] There were a number of applications for orders for the production of documents. Some were directed at LDD and in response to the first of these, an email from the Bega Group of companies was received by my Chambers on 11 February 2021 advising that the Bega Group had recently acquired all…

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.

Continue reading Mark Anderson v Programmed Industrial Maintenance Pty Ltd

Details

AGLC: Mark Anderson v Programmed Industrial Maintenance Pty Ltd [2021] FWC 4048
Case: [2021] FWC 4048
Decision Date: 13 JULY 2021

CaseChat Overview and Summary

Mark Anderson, a labour hire employee, sought an unfair dismissal remedy against Programmed Industrial Maintenance Pty Ltd, his employer. The dispute centred on Mr Anderson's dismissal from his position at a client site, with the crux of the matter being whether his dismissal was genuinely related to redundancy or rather due to the employer's withdrawal of access to the client site. The case was heard in the Fair Work Commission, Australia's national workplace relations tribunal.

The legal issues before the court encompassed the distinction between a genuine redundancy and other reasons for dismissal, as well as the implications of the employer's actions in terminating access to the client site. The court was required to determine if the dismissal fell within the scope of a genuine redundancy or if it constituted an unfair dismissal under the Fair Work Act 2009. Additionally, the court had to assess whether the employer's decision to withdraw access to the client site was a valid reason for terminating the employment contract.

In its reasoning, the court found that the dismissal was not a genuine redundancy, as the employer had continued to employ other labour hire employees at the same client site. The court also determined that the employer's withdrawal of access was not a valid reason for dismissal, as it was not directly linked to Mr Anderson's employment but rather a consequence of broader business decisions. Consequently, the court concluded that Mr Anderson's dismissal was not unfair, and his application for an unfair dismissal remedy was dismissed. The decision was based on the clear evidence that the dismissal was not for a genuine redundancy reason, nor was it directly attributable to the employer's withdrawal of access to the client site.

Orders