DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Aaron Trask
v
Vaughan Constructions Pty Ltd
(U2020/10672)

DEPUTY PRESIDENT LAKE

BRISBANE, 5 MARCH 2021

Application for unfair dismissal remedy – genuine redundancy jurisdictional objection – whether redundancy genuine – alleged downturn in business due to COVID-19 – labour hire contractor fulfilling duties – redundancy found not to be genuine – dismissal not unfair – application dismissed.

[1] Mr Aaron Trask (the Applicant) has made an application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (the Act) seeking relief from unfair dismissal in relation to his dismissal from Vaughan Constructions Pty Ltd (Vaughan/the Respondent) on 6 August 2020.

[2] The Respondent is a Melbourne based construction company that provides design and construction services. The Applicant worked for its Brisbane office which opened in 2019 as part of efforts to expand the business into Queensland. Until his dismissal, the Applicant worked as a labourer/peggy/safety supervisor, although he performed some functions as a leading hand. The Applicant’s employment was covered by the Building and Construction General On-Site Award 2010 (the Award). At the Hearing, there was some dispute regarding whether the Applicant was covered by an enterprise agreement, which will be addressed below.

[3] The Respondent employed 218 employees at the time the Applicant was dismissed. This included staff who provided labour as well as various supporting and administrative roles. Five staff worked in the Brisbane office.

[4] In its Form F3 – Employer’s response, the Respondent raised the jurisdictional objection that the Applicant’s dismissal was not unfair because it was a case of genuine redundancy. The matter proceeded to conciliation but did not resolve. It was allocated to me and I issued Directions for filing of material and listed the matter for Hearing in relation to the jurisdictional objection.

[5] At the Hearing, the Applicant represented himself and gave evidence on his own behalf. Ms Emma Hartigan provided witness evidence for the Applicant. The Respondent was represented by Mr Leigh Howard of Counsel, instructed by Ms Grace Turner-Mobbs of KCL Law. Mr Josef Picone, National Construction Manager for the Respondent, provided evidence on behalf of the Respondent.

[6] The Applicant sought to be represented. Granting permission to be represented under s 596 requires the satisfaction of two elements. 1 The first pre-requisite: the presence of one of the criteria under s 596(2), does not immediately invoke the right to representation – establishing satisfaction “involves an evaluative judgment akin to the exercise of discretion.”2 Once that first step is satisfied, the second step “involves consideration as to whether in all of the circumstances the discretion should be exercised in favour of the party seeking permission.”3

[7] In this matter there was a degree of complexity, given the jurisdictional objection, and I was satisfied legal representation would aid efficiency. I was satisfied that granting permission to be represented was an option…

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: [2021] FWC 1218
Decision Date: 5 MARCH 2021

CaseChat Overview and Summary

Mr Aaron Trask filed an application for an unfair dismissal remedy against Vaughan Constructions Pty Ltd, his former employer. The dispute centred on the fairness of his dismissal, with Trask contending that his termination was not due to genuine redundancy but rather a pretext to avoid paying redundancy entitlements. Vaughan Constructions argued that the dismissal was a genuine redundancy, necessitated by a downturn in business caused by the COVID-19 pandemic. The Fair Work Commission was tasked with determining the fairness of the dismissal and whether the redundancy was genuine.

The primary legal issue the Commission had to resolve was whether the redundancy was genuinely motivated by a downturn in business, or if it was a pretext to avoid paying redundancy entitlements. The Commission examined the evidence presented by both parties, including the employer's business records, financial statements, and the role of the labour hire contractor in fulfilling duties. The Court needed to decide if the downturn in business was genuine and if the redundancy was a direct consequence of this downturn, or if it was an attempt to avoid legal obligations.

The Fair Work Commission concluded that the redundancy was not genuine. The evidence showed that the labour hire contractor was fulfilling the employer's duties, indicating that there was no genuine downturn in the business. The Commission found that the employer's decision to terminate Mr Trask was not due to a genuine redundancy but rather to avoid paying redundancy entitlements. Consequently, the dismissal was not considered unfair. The application for an unfair dismissal remedy was dismissed, and no orders were made in favour of Mr Trask.

Orders