DECISION

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

Mr Ayman Michael
v
Transfield Services (Australia) Pty Ltd
(U2014/8370)

DEPUTY PRESIDENT SAMS

SYDNEY, 4 DECEMBER 2014

Termination of employment - contract to Department of Defence - whether employee genuinely redundant - consultation with affected employees - selection process - offers of redeployment - terms of enterprise agreement - whether dismissal ‘harsh, unjust or unreasonable’ - employer met all its obligations to redundant employee - case of genuine redundancy - Commission has no jurisdiction - application dismissed.

[1] Mr Ayman Michael (the ‘applicant’) was employed by Transfield Services (Australia) Pty Ltd (the ‘respondent’ or ‘Transfield’) as a C7 (Trade) Electronic Technician, working on Transfield’s Land Materiel Maintenance contract (LMM) at the Department of Defence’s Moorebank facility. The applicant commenced employment with Transfield on 9 September 2013, although he had worked at the facility for a previous contractor to the Department of Defence (the ‘Department’) for some 6 ½ years.

[2] On 27 May 2014, Transfield was given formal notice by the Department that it was reducing its funding of the electronic trade maintenance service delivered by the LMM Moorebank. As a result, 6 of the 12 existing C7 Electronic Technician positions were to be made redundant on 1 July 2014. After a period of consultation and attempts by the respondent to identify redeployment opportunities (the genuineness of which was contested by the applicant), four of the affected employees were ultimately made redundant on 27 June 2014; the applicant obviously being one of the four.

[3] On 17 July 2014, the applicant filed an application, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’) seeking a remedy from what he claimed was his unfair dismissal by the respondent. He relied on the definitions of unfair dismissal and genuine redundancy found at ss 385 and 389 of the Act respectively as follows:

‘385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.’

...

389 Meaning of genuine redundancy

(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer.’

[4] Relevantly, s 396 of the Act states:

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: [2014] FWC 8739
Decision Date: 4 DECEMBER 2014

CaseChat Overview and Summary

The case before the Fair Work Commission involved Mr Ayman Michael, who was employed under a contract with the Department of Defence. His employer, Transfield Services (Australia) Pty Ltd, terminated his employment. Mr Michael challenged the termination, arguing it was unjust and unreasonable, and sought to have it set aside. The Commission was tasked with determining whether the termination was genuinely for redundancy, and if the employer fulfilled its obligations under the applicable enterprise agreement and the Fair Work Act 2009 (Cth).

The primary legal issues the Commission had to address were whether the employer met its obligations regarding genuine redundancy and whether the termination was harsh, unjust, or unreasonable. The Commission had to consider if the employer appropriately consulted with affected employees, the process for selecting those to be made redundant, and if suitable offers of redeployment were made. Additionally, the terms of the enterprise agreement and the overall fairness of the dismissal needed examination.

The Commission concluded that the employer had fulfilled all its obligations. It determined that Mr Michael's position was genuinely redundant, and the employer had adequately consulted with him, followed the selection process as outlined in the enterprise agreement, and made reasonable offers of redeployment. The Commission found no evidence that the dismissal was harsh, unjust, or unreasonable, affirming that it was a case of genuine redundancy. As such, the Commission did not have jurisdiction to intervene, and the application to set aside the termination was dismissed.

Orders