Mark Howlett v Burst Group Pty Ltd

[2024] FWC 3478

[2024] FWC 3478

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Mark Howlett
v

Burst Group Pty Ltd

(U2024/10994)

DEPUTY PRESIDENT BELL MELBOURNE, 24 DECEMBER 2024

Application for an unfair dismissal remedy - dismissal not unfair- redundancy - application dismissed.

On 13 September 2024, Mr Mark Howlett (Applicant) made an application (the Application) to the Fair Work Commission (Commission) for relief from unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The Applicant alleges he was unfairly dismissed by Burst Group Pty Ltd (Respondent) with the dismissal taking effect on 10 September 2024.

1. The Respondent agrees the effective date of dismissal was 10 September 2024 but denies the dismissal was unfair. There was no dispute the application was made within time.

1. In its Form F3 Employer response, the Respondent raised a jurisdictional objection that the Applicant’s dismissal was a case of genuine redundancy (s.389). The response also states that at the time of the Applicant’s dismissal the Respondent had 8 employees, making it a small business employer.

1. For the reasons given more fulsomely on transcript and subsequently circulated to the parties, I record that Mr Howlett was dismissed because his job was no longer required to be performed because of operational requirements of the respondent. Mr Howlett’s various duties and functions were distributed to other employees. The reason for the redundancy was explained by Mr Coates, the owner of the business and whose evidence I accept. The heart of that reason was due to a business downturn and the need to find cost savings. For those reasons and following Mr Coates’ evidence, I also find that it was not otherwise reasonable in the circumstances for Mr Howlett to have been redeployed. Notwithstanding those findings, the dismissal was not a “genuine redundancy” for the purposes of s.389 of the Act because the requirements for ‘written’ consultation under the relevant Award that applied to Mr Howlett’s employment were not met. There was consultation, but not in writing for the purposes of the Award.

1. The respondent was a small business but, in the circumstances, the Small Business Fair Dismissal Code was not applicable, because the dismissal did not pertain to the performance or conduct of Mr Howlett, neither of which were in issue. The dismissal was in no way a reflection on the quality of Mr Howlett’s work.

1. That leaves the dismissal to be assessed against the requirements of s.387 to determine if the dismissal was harsh, unjust or unreasonable. While the requirements of s.389 were not met, the dismissal was clearly a result of a bona fide redundancy and there was no opportunity for redeployment. There was consultation, just not in writing. While aspects of that consultation were limited, the evidence before me makes it perfectly clear that no different outcome would have followed if different procedures were adopted. In all the circumstances of the matter, I was not satisfied that the dismissal was harsh, unjust or unreasonable within the meaning of s.387 of the Act. Even if I concluded differently by taking a different view about the level of consultation, reinstatement is plainly inappropriate given the business circumstances of the Respondent and I would not make any order for compensation because the same outcome would have been arrived at.

1. Accordingly, not being satisfied that the dismissal was harsh, unjust or unreasonable, the requirements of s.385 were not met and the application must be dismissed.

1. An order[1] dismissing the Application was issued on 3 December 2024.

DEPUTY PRESIDENT

Appearances:

M. Howlett on his own behalf.
L. Coates from the Respondent.

Determinative Conference details:

2024.
Melbourne:
December 3.

[1] PR781976.

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