Mikhail Mochalov v Ames T/A Ames Australasia Pty Ltd
[2023] FWC 2464
•26 SEPTEMBER 2023
| [2023] FWC 2464 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Mikhail Mochalov
v
AMES T/A AMES Australasia Pty Ltd
(U2022/11812)
| COMMISSIONER SCHNEIDER | PERTH, 26 SEPTEMBER 2023 |
Application for an unfair dismissal remedy
On 13 December 2022, Mr Mikhail Mochalov (the Applicant) made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that he had been unfairly dismissed from his employment with AMES T/A AMES Australasia Pty Ltd (the Respondent). The Applicant seeks compensation.
Background
The Applicant commenced casual employment with the Respondent on 21 September 2021.
The Applicant was engaged as a store person and his employment was covered by the Storage Services and Wholesale Award 2020 (the Award).
The Applicant was employed as a casual employee during his time with the Respondent.
There is a dispute between the parties in relation to if the Applicant was offered casual conversion to permanent employment.
The Applicant alleges that the Respondent failed to comply with its obligation to offer him conversion to a permanent position once he had completed the required 12 months of service.
The Respondent contends that the Applicant declined the offer of conversion to permanent employment as he was not satisfied with the hourly rate on offer.
The Respondent submits that, due to a decline in sales and a reduced volume of work, it no longer required any casual employees, including the Applicant.
The Respondent’s position is that the Applicant was a casual employee, who had made a decision to stay casual, and, due to a downturn in operational requirements, the business no longer required his services resulting in his termination.
The Applicant’s employment with the Respondent ceased on 23 November 2022.
At the Hearing, the Applicant gave evidence on his own behalf.
The following witnesses, who are employees of the Respondent, gave evidence on its behalf.
· Mr Michael Wood (Mr Wood) – Head of People and Culture.
· Ms Mallorie Place (Ms Place) – Human Resources Business Partner.
· Mr Campbell Turner (Mr Turner) – Warehouse Manager.
· Mr Shane Bennett (Mr Bennett) – Warehouse Supervisor.
· Mr Warren Gibson (Mr Gibson) – WHS Co-ordinator.
However, only Mr Turner and Mr Bennett were required for cross examination.
Legislation
Preliminary matters
The Act requires that I determine several initial matters before considering the merits of the Applicant’s application. There is no dispute between the parties concerning these initial matters, and I am satisfied that none of the usual preliminary issues require attention.[1]
When can the Commission order a remedy for unfair dismissal?
Section 390 of the Act provides that the Commission may order a remedy if:
(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and
(b) the Applicant has been unfairly dismissed.
Both limbs must be satisfied.
I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed.
As has been established, I am satisfied that the Applicant is protected and therefore I must now consider the second limb.
Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust, or unreasonable, the Commission must take into account several criteria.
Section 387 of the Act reads:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[2]
Consideration of criteria
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?
In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[3] and should not be “capricious, fanciful, spiteful or prejudiced.”[4] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[5]
Strictly speaking, neither the Applicant nor the Respondent provided detailed submissions or evidence in relation to this point, as it is not contended that the Applicant was dismissed for any reason related to his capacity or conduct.
However, more broadly, the Respondent did make submissions regarding its reason for terminating the Applicant. I will briefly discuss these reasons.
The Respondent submits that it engaged a mixture of employees, including permanent fulltime employees, permanent part-time employees, casual employees, and agency (labor hire) staff.
The Respondent submits that, in the second half of 2022, there was a downturn in the Respondent’s business operations in Western Australia. The Respondent submits that this was primarily caused by a reduced demand from the Respondent’s major client. The Respondent provided very brief witness evidence in support of this submission and no documentary evidence was provided to the Commission.
The Respondent submits that, due to the downturn in operations in Western Australia, the business decided that agency staff and casual employees would not be required for the foreseeable future.
Mr Turner gave evidence that, on 16 November 2023, he advised the Applicant the business was not as busy as they had been previously, and that the Applicant was not required for the remainder of the week.
Mr Turner requested the Applicant call him on the Friday to confirm if there was any work the following week. However, the Applicant did not call Mr Turner.
The Applicant then sent an email, to a generic customer service inbox, for the Respondent in relation to his employment, on 16 November 2023. This email requested a copy of his contract of employment.
From the emails provided, it is clear that there were discussions between Mr Wood and Mr Turner, on 16 November, in which the below was stated:
“I believe he is a casual who will not be needed soon. However, I want to make sure this is handled properly”. (Emphasis added).
On assessment of the email sent by Mr Wood, it is evident that a decision had been made to end the employment relationship between the Respondent and the Applicant in the near future.
On 23 November 2022, the Applicant was issued with a letter, confirming that his employment with the Respondent had been terminated, effective immediately. The letter outlined that, due to a decline in work, there would not be any casual shifts available for the Applicant for the foreseeable future.
Findings
I have considered the submissions of the Respondent that, due to a downturn in business operations in Western Australia, it did not require the services of the Applicant or any other casual employees from approximately 23 November 2022.
I find that the Respondent relied upon an alleged reduction in operational requirements and lower customer demand as the reason for the Applicant’s termination.
As this reason does not relate to the Applicant’s conduct or capacity, I consider this neutral in my assessment. The Respondent’s reason for dismissal is discussed further in this decision.
Was the Applicant notified of the valid reason?
Proper consideration of section 387(b) of the Act requires a finding to be made as to whether the applicant “was notified of that reason”. Contextually, the reference to “that reason” is the valid reason found to exist under section 387(a) of the Act.[6]
Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,[7] and in explicit[8] and plain and clear terms.[9]
There were limited submissions and evidence provided by both parties in relation to this point, as it is not contended that the Applicant was dismissed for any reason related to his capacity or conduct. However, I will briefly discuss the items relating to the Applicant’s notification of dismissal.
From the evidence provided, the Respondent knew, on 16 November 2023, that the Applicant’s employment would be coming to an end sooner rather than later due to the downturn in operational requirements.
The email correspondence between Mr Wood and Mr Turner confirmed this to be the case, on 16 November 2022.
Mr Turner’s evidence was that he advised the Applicant that there was no work for him, on 17 November 2022, as evidenced by his email to Mr Wood:
“I told him that as he could no doubt see in the last few weeks we haven’t been as busy as we were previously and that because of this we didn’t have any work for him on Thursday 17.11 which would have been his next shift”.
There is no evidence that the Respondent told the Applicant that his employment would be coming to an end ahead of issuing the termination letter. Rather, the Respondent told the Applicant that the Respondent’s operations were not as busy as previous and they did not have work for him, on 17 November 2022.
This is further supported by Mr Turner stating, in his email to Mr Wood, “I said that he should call me on Friday to see if there was any work next week”. From the submissions, and evidence provided, the next clear communication to the Applicant was his letter of termination, issued on 23 November 2022.
The Respondent was aware by, at the latest, 16 November 2022 that the Applicant’s casual employment with the Respondent would be ending due to an alleged reduction in operational requirements.
The Respondent advised the Applicant that he would not be required for his regular shift on 17 November 2022.
The Respondent then terminated the Applicant’s casual employment, on 23 November 2022.
The Applicant was notified of the “reason” for his dismissal at the same time it took effect, being notified through his termination letter.
However, it should be noted that, as I concluded there was no valid reason related to his capacity or conduct, he could not have been notified of it.
Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?
An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.[10]
The opportunity to respond does not require formality and this factor is to be applied in a common-sense way to ensure the employee is treated fairly.[11] Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.[12]
Neither party provided any detailed submissions or evidence in relation to this point, as it is not contended that the Applicant was dismissed for any reason related to his capacity or conduct. However, I will briefly discuss the items relating to any opportunity for the Applicant to respond.
From the submissions provided, it is evident that the Applicant was not provided with the opportunity to respond to the Respondent’s reason to terminate his casual employment.
The Respondent made a decision that the Applicant’s casual employment was no longer required, as, in the Respondent’s submission, there was no longer any work for the Applicant to complete.
This decision was made by the Respondent, most likely, on or around 16 November 2022. The Applicant was advised that his casual employment was ending at the same time his dismissal took effect, on 23 November 2022.
The Applicant was not provided with the opportunity to discuss the “reason” for his dismissal.
However, it should be noted that, as I concluded there was no valid reason related to his capacity or conduct, he could not have been given the opportunity to respond to such reason.
Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?
Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
There is no positive obligation on an employer to offer an employee the opportunity to have a support person:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”[13]
There are no submissions from the Applicant that the Respondent refused a support person to be present at any discussion relating to his dismissal.
I note that, due to the failure to consult with the Applicant prior to his dismissal, or properly consult regarding the alleged operational downturn (further discussion regarding consultation appears later in this decision), no such discussions occurred.
Was the Applicant warned about unsatisfactory performance before the dismissal?
As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.
To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal and to what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
Neither party submits that the size of the Respondent’s enterprise was likely to impact on the procedures followed in effecting the dismissal.
From the submissions and evidence before the Commission, it is clear that the Respondent has a dedicated internal human resources management specialists employed within the business.
The Respondent has a Human Resources department at its disposal who were, in some capacity, involved in the dismissal. The facts relating to the Respondent’s size and dedicated human resources management team should not have resulted in any negative impact on the procedures followed.
What other matters are relevant?
Section 387(h) of the Act requires the Commission to take into account any other matters that the Commission considers relevant.
Casual Conversion
The bulk of the Applicant’s submissions the Respondent’s alleged failure to provide him with casual conversion to a permanent position after 12 months of employment.
The Applicant submits that the Respondent had failed to comply with the requirements of the Act and had not provided him with a written offer of permanent employment following his 12 months of casual employment.
The Applicant submits that the Respondent had no evidence in relation to the conversations that the Respondent alleges were held between the Applicant and the Respondent regarding casual conversion.
The Applicant concedes that there were verbal offers made by the Respondent. The Applicant maintains that the main discussions related to the hourly rate and his preference for permanent part-time employment, rather than permanent full-time employment.
The Applicant also submits that the Respondent had previously agreed to his request, to be converted from casual to a permanent part time employee, on 15 November 2022.
The Respondent submits that the Applicant was a casual employee who was no longer required when the Respondent’s business suffered a downturn in work in late 2022.
The Respondent submits that, in the six months prior to the Applicant’s casual employment ending, six staff members were converted from casual to permanent employment with five on full-time hours and one on part-time hours.
The Respondent submits that verbal offers were made to the Applicant by Mr Turner from as early as June 2022 about the Applicant obtaining a permanent position with the Respondent.
The Respondent maintains that the Applicant rejected offers of permanent employment as the hourly rate of pay was not to the Applicant’s liking.
The Applicant made numerous comments and observations about the evidence and submissions of the Respondent. However, no substantial grounds of rebuttal or evidence were provided by the Applicant to support such counter positions.
The Respondent submits that the Applicant had been provided with the opportunity to take up permanent employment with the Respondent. However, the Applicant had declined this offer due to pay differences.
Whilst the Applicant disagreed with the evidence of Mr Turner and Mr Bennett, he conceded that verbal offers of permanent employment did occur.
A copy of an email communication between Mr Turner and Ms Place, in which Mr Turner seeks to confirm the hourly rate of payment should the Applicant move from casual employment to permanent employment, was provided to the Commission.
An email from Mr Turner to Mr Wood, confirming that the Applicant had not accepted the offers of permanent employment as the hourly rate was not to his liking, was also provided to the Commission.
Operational Requirements and Consultation
The Respondent submits that it engaged a mixture of employees, including permanent fulltime employees, permanent part-time employees, casual employees, and agency staff.
The Respondent submits that, in the second half of 2022, there was a downturn in business operations in Western Australia. The Respondent submits that this downturn was primarily caused by a reduced demand from the Respondent’s major client.
The Respondent submits that, due to the downturn in operations in Western Australia, the business decided that agency staff and casual employees would not be required for the foreseeable future.
The terms and conditions of the Applicant’s employment were governed by the Award.
The Award in question, at Part 7; Clause 30, requires that an employer consult with employees in the following circumstances and form:
“30. Consultation about major workplace change
30.1 If an employer makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must:
(a) give notice of the changes to all employees who may be affected by them and their representatives (if any); and
(b) discuss with affected employees and their representatives (if any):(i) the introduction of the changes; and
(ii) their likely effect on employees; and
(iii) measures to avoid or reduce the adverse effects of the changes on employees; and
(c) commence discussions as soon as practicable after a definite decision has been made.
30.2 For the purposes of the discussion under clause 30.1(b), the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including:
(a) their nature; and
(b) their expected effect on employees; and
(c) any other matters likely to affect employees.
30.5 In clause 30 significant effects, on employees, includes any of the following:
(a) termination of employment; or
(b) major changes in the composition, operation or size of the employer’s workforce or in the skills required; or
(c) loss of, or reduction in, job or promotion opportunities; or
(d) loss of, or reduction in, job tenure; or
(e) alteration of hours of work; or
(f) the need for employees to be retrained or transferred to other work or locations; or
(g) job restructuring.”
Findings
The Applicant did not provide any evidence in support of his position that the Respondent had agreed to make him a permanent part time employee on 15 November 2022 or at any date prior to this date.
Rather, on the evidence before the Commission, it appears that the Applicant himself, although eager to convert to a permanent position, prevented any attempts at conversion due to his dislike of the lower pay rate.
The Respondent was aware of their obligations in relation to casual conversion arrangements under the National Employment Standards (NES).
Despite being aware of their obligations under the NES, the Respondent did not comply with the requirements of the NES to provide the Applicant with an offer of casual conversion in writing.
Rather, it appears that, the Respondent has adopted the practice of only having verbal discussions with employees during their employment tenure and employees who are interested in converting to permanent employment are then offered permanent employment. Employees, like the Applicant, who decline offers of permanent employment do not receive anything in writing.
I do not believe that the Respondent has acted in a manner whereby they have sought to undermine their obligations in relation to casual conversion, this is evident in the number of employees that the Respondent converted to permanent employment.
However, the Respondent’s management of this process is lacking in record keeping requires amendments to ensure proper compliance.
The Respondent, whilst not satisfying the requirements of the NES, did make effort to provide the Applicant with the ability to convert his casual employment to permanent employment.
From the evidence provided, I have found that the Respondent did hold conversations with the Applicant about converting his casual employment to permanent employment. However, the Applicant did not accept this offer on his own accord.
Nevertheless, I am concerned that the Respondent’s failure to adequately consult with the Applicant, in relation to the change in operating requirements and how his casual employment would be impacted if he failed to accept conversion, impacted his dismissal.
The Respondent did not take further action to ensure that the Applicant was aware of what impact his decision to decline casual conversion could have on his ongoing employment. This issue is intertwined with the failure to consult regarding the alleged downturn, which I will now turn to discuss.
It is useful to note the Decision in UES (Int'l) Pty Ltd v Leevan Harvey (UES), which bears some similarity to the matter presently before the Commission.[14]
In UES, a Full Bench of the Commission considered a matter on appeal in which the employee was granted a remedy for unfair dismissal. The employee in that matter was made “redundant” following a downturn in business, being selected out of his colleagues as he was the least efficient. The employee was not consulted, in accordance with the relevant legislative instrument, prior to his termination.
The Full Bench, in unison with the Commissioner in the first instance, found that the employee’s termination was not a genuine redundancy within the meaning of the Act, due to this failure to consult.
The majority in UES went on to determine that, as the employee was terminated due to a downturn in business, there was no valid reason related to his capacity or conduct. The minority concluded that there was a valid reason related to the capacity as, in part, the employee’s termination was the result of his performance.
The majority in UES proceeded to conclude that the employer had a defensible reason for termination, being the downturn in business that was made out on the evidence, but that the failure to consult resulted in a finding that the dismissal was unfair. The minority instead concluded that, in the circumstances, the lack of consultation did not lead to a finding that the dismissal was unfair. The minority came to this conclusion as the employer had adequately consulted with the employee’s team members but not the applicant, only because the employee was on leave at the relevant time, and because the “consultation was highly unlikely to have negated the operational reasons for the dismissal or lead to any other substantive change” due to the operational requirements.
Earlier in this decision, I concluded that there was no valid reason related to the Applicant’s capacity or conduct, in line with the majority’s conclusion in UES. I am not of the opinion that the conclusion raised by the minority in UES, in regard to a valid reason, is applicable to this matter as the Applicant was selected purely because of his employment status and his capacity or conduct was not factored into his selection.
I conclude that the Respondent did not properly communicate the change in operational requirements, and the severity of the impact of this, or consult with the Applicant, and potentially other impacted employees, prior to the decision to terminate being made nor did it provide any kind of formal or clear warning of the seriousness the downturn posed for ongoing employment.
The Respondent did not raise the jurisdictional objection that the Applicant’s employment had been terminated due to a genuine redundancy and redundancy has not been referred to by the Respondent at any point throughout the Applicant’s termination.
Had the Respondent argued that a genuine redundancy occurred, it would have to be dismissed on the grounds that the Respondent failed to comply with section 389 of the Act as it has not, on the evidence, established a downturn in business nor did not consult with the Applicant, as required under the Award, prior to terminating his employment.
Rather, it appears that the Applicant’s role did indeed become redundant in the general sense, as noted in UES.
The Respondent did not properly consult with the Applicant regarding the downturn in business, as required by the Award. At the most, it appears the Respondent had some informal discussions with the Applicant regarding a lack of shifts for him and the insecurity of casual employment. On the evidence, it appears that, any warning or communication to the Applicant regarding these issues was superficial and did not, even remotely, indicate that these issues would lead to the termination in a manner that I would, even to a merely passable degree, consider a form of consultation.
No consultation regarding the downturn and its potential effects occurred in writing.
At no point in time was it made clear to the Applicant that there was a downturn in business that could very likely result in his termination. If there was indeed a downturn in business, the Respondent had an obligation to consult, in accordance with the Award, with the Applicant prior to his termination.
The Respondent had a requirement to clearly consult with the Applicant; explaining that there was a downturn in business and that his employment, as a casual employee, would be at risk of termination over that of his more permanent colleagues. If this had occurred, the Applicant would have had greater reason, and better information on which, to consider converting to permanent employment and accepting a reduction in pay, understanding that it could result in dismissal if he did not.
On the materials provided to the Commission, it appears that, at the most, the Respondent made informal offers of conversion and minor comments regarding the risk of ongoing employment as a casual to the Applicant. It appears that these comments were not raised in the context of the alleged downturn and the very probable impending termination of the Applicant’s employment. There is a clear lack of any contemporary and clear warnings or consultation regarding the operational downturn and the effect it could have on the Applicant’s ongoing employment.
I am not satisfied that this consultation, or lack thereof, was appropriate in the circumstances and does not satisfy the requirements under the Award.
Further, although the Respondent submits that there was a downturn in business leading to the decision to terminate the Applicant, they have provided no documentary evidence to support such assertion.
The evidence before the Commission merely states the fact that there was a downturn, no supporting evidence is provided to substantiate this assertion or reflect a decline in operational requirements.
I am not inclined to believe that the Respondent is being misleading in this claim, or manufacturing facts that do not exist. Rather, the Respondent has not supported its claim with evidence that could lead to a conclusion that an act as serious as the termination of an individual’s employment was necessary.
I do not believe it would be appropriate to conclude the reason was defensible, on only the word of witnesses, when the existence of a downturn in operational requirements could so easily and more properly be established on documentary evidence. On the evidence before the Commission, I am not satisfied that I am able to conclude that there was a defensible reason for the Applicant’s termination.
Had the Respondent provided any supporting evidence to satisfy the conclusion that there was a downturn in business, leading to the Applicant’s termination, I would be inclined to echo the majority in UES. In that instance, I would believe it appropriate to conclude that there was a defensible and well-founded reason for the Applicant’s termination as his role was redundant (in the general sense).
Briefly, to entertain the minority’s conclusion in UES on this point, I am again of the opinion that such a conclusion would not apply to the circumstances in this matter. The Applicant in this matter clearly had some level of interest in moving to permanent work, which would have spared him from termination.
I note that the Applicant, prior to his termination, did not choose to pursue conversion due to the pay difference. However, I am of the opinion that, if the Respondent had consulted with the Applicant in the manner required, the Applicant would have been in a more fully informed position to contemplate conversion to permanent employment. It is clear that the Applicant is aggrieved by his dismissal and that, at the least, proper consultation could have assisted his awareness of the situation and clarified the very probable outcome of termination.
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?
I have made findings in relation to each matter specified in section 387 of the Act as relevant.
I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust, or unreasonable.[15]
Having considered each of the matters specified in section 387 of the Act, I am satisfied that the dismissal of the Applicant was unjust.
I have determined that the Respondent’s failure to comply with both the Award and the National Employment Standards (NES) meant that the decision to terminate the Applicant’s employment was completed in a manner which was unjust.
The Award required the Respondent to consult with employees if there is major change in the operational environment which is going to impact on employee’s employment. It is clear that the Respondent’s (alleged) changing operational requirements and reduction in casual labour requirements was a major change for which the Applicant and other impact employees should have been consulted on prior to the decision being made.
The reason for the dismissal, if it had been supported by more than mere statements, would be defensible and reasonable in the circumstances. However, as I have established above, I am not confident to conclude that the reason is made out on the evidence before me in the circumstances where the reason resulted in the loss of an individual’s employment.
Conclusion
I am therefore satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the Act.
Directions regarding remedy will be issued in due course.
COMMISSIONER
[1] The application was made within the relevant time period (s.394(2)). There is no dispute that the Applicant has been dismissed (s.386). The Applicant is a person protected from unfair dismissal as; the Applicant did not earn over the high-income threshold, the Applicant’s employment was subject to an Enterprise Agreement, and it is not disputed that the Applicant has served the minimum employment period (s.382). The Applicant’s dismissal was not a case of genuine redundancy (s.389) – Although, it should be noted that this issue is discussed later in this decision. The Small Business Fair Dismissal Code is not applicable (ss.385; 388(1)), as the Respondent has confirmed it had more than 12 employees at the time of the dismissal. Additionally, the Hearing was held in compliance with section 397. Neither party requested permission to be represented.
[2] [2011] FWAFB 7498, [14]; PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
[3] (1995) 62 IR 371, 373.
[4] Ibid.
[5] (1996) 142 ALR 681, 685.
[6] [2020] FWCFB 6429, [19]; [2020] FWCFB 533, [55].
[7] (2000) 98 IR 137, 151.
[8] Print Q3730 (AIRC, Holmes C, 6 October 1998).
[9] Ibid.
[10] Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].
[11] (2010) 194 IR 1, 14-15.
[12] (1995) 60 IR 1, 7.
[13] Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].
[14] [2012] FWAFB 5241.
[15] (2002) 117 IR 357, [51]; See also, PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; [1999] FCA 1836, [6]–[7].
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