DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Green
v
Duratec Limited
(U2020/7337)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 15 SEPTEMBER 2020

Application for an unfair dismissal remedy – whether genuine redundancy

[1] This decision concerns an application made by Mr Mark Green under s 394 of the Fair Work Act 2009 (Cth) (Act) for an unfair dismissal remedy. Mr Green was employed as a skilled labourer by Duratec Limited from 1 August 2017 until his dismissal on 13 May 2020 for reason of redundancy.

[2] Mr Green says that his dismissal was unfair because he was not consulted about his redundancy and was dismissed on the same day that he was notified of his retrenchment. He believes that he was selected for redundancy because he raised concerns about his job security in the lead up to his dismissal. Mr Green’s application also contended that he had not received his redundancy entitlements, however this contention was not pressed at the hearing, and the company’s evidence was that his entitlements had been paid.

[3] The company objected to the application on the ground that the dismissal was a genuine redundancy for the purposes of s 389 of the Act, and contended that in any event, the dismissal was not unfair. It said that Mr Green’s position was one of 17 in Victoria that the company made redundant as a result of the downturn in business caused by the COVID-19 pandemic.

[4] The matter was listed for hearing before me on 7 September 2020. Mr Green appeared and gave evidence on his own behalf. The company led evidence from Mr Cain Thomas, the company’s Victorian operations manager, Ms Tracy Fairburn, human resources manager, and Mr Ollie McKeon, the company’s general manager for the eastern states.

[5] The jurisdictional question of whether Mr Green’s dismissal was a case of genuine redundancy is one of the four matters that s 396 of the Act requires the Commission to decide before considering the merits of an unfair dismissal application. I will record here my conclusions on the other three preliminary matters in s 396, none of which were contentious. First, Mr Green’s application was made within the 21-day period required by s 394(2) of the Act. Secondly, Mr Green was a person protected from unfair dismissal, as he earned less than the high-income threshold and had undertaken the minimum period of employment (s 382). Thirdly, the company is not a small business, and therefore no question of compliance with the Small Business Fair Dismissal Code arises.

The evidence and submissions of the parties

[6] The company provides specialised contracting services for the protection and remediation of steel and concrete structures. It has been significantly affected by the COVID-19 pandemic. On 25 March 2020, Mr Thomas attended Mr Green’s worksite and read out to Mr Green and two other workers a two-page document entitled ‘major change consultation’. The document concerned ‘upcoming major changes to the business and the reasons for changes’. It…

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 4960
Decision Date: 15 SEPTEMBER 2020

CaseChat Overview and Summary

The proceedings were between Mark Green and Duratec Limited, in which the applicant sought a remedy for unfair dismissal. The applicant alleged that his dismissal was unjust and that the employer had failed to follow the correct procedures. The matter was heard in the Fair Work Commission. The dispute centred on whether the applicant's dismissal was for genuine redundancy or whether it was unfair and unjust. The employer argued that the dismissal was a genuine redundancy, while the applicant contended that it was unfair and that there was no genuine redundancy. The central legal issue was whether the employer had demonstrated that the applicant's position was genuinely redundant and that the employer had followed the correct procedures in making the dismissal. The court considered the evidence presented by both parties and examined the employer's conduct in determining whether the dismissal was genuine and procedurally fair. The court found that the employer had not demonstrated that the applicant's position was genuinely redundant, and the dismissal was therefore unfair. The employer had not followed the correct procedures in making the dismissal and had failed to provide the applicant with an opportunity to apply for other available positions within the organisation. The court ordered that the applicant be reinstated to his former position and that he be paid compensation for the period of his dismissal.

Orders