Mr Badrin Baharom v - [2024] FWC 2706

[2024] FWC 2706

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Badrin Baharom

Master Butchers Co-operative Limited

(U2024/6824)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 27 SEPTEMBER 2024

Application for an unfair dismissal remedy – factory hand – whether genuine redundancy – failure to consult – not a genuine redundancy (as defined) – whether harsh, unjust or unreasonable – dismissal unfair – application granted – compensation ordered

On 13 June 2024, Badrin Baharom (Mr Baharom or the applicant) applied to the Commission under s 394 of the Fair Work Act 2009 (Cth) (the FW Act) for an unfair dismissal remedy.

The respondent is Master Butchers Co-operative Limited (Master Butchers, the employer or the respondent). Mr Baharom worked as a factory hand in regional South Australia until dismissed on 11 June 2024.

The respondent contends that the dismissal was not unfair because it was a genuine redundancy. Mr Baharom disagrees. He raises issues of substantive and procedural unfairness.

The matter was not resolved by conciliation. I issued directions on 6 August 2024.

Materials were filed by Master Butchers and Mr Baharom. Financial records and work rosters were produced by the respondent. I directed that these materials be subject to a confidentiality undertaking by the applicant and the applicant’s representative. Those undertakings were given.

I heard the application by in-person hearing on 12 September 2024.

Mr Baharom was represented by a legally qualified officer of the Australasian Meat Industry Employees’ Union (AMIEU), Mr Swan. Master Butchers was represented by its Human Resources and WHS Manager, Ms Whitehouse (who also gave evidence).

Mr Baharom’s evidence was given through an interpreter who appeared by telephone. By agreement, a family member provided informal simultaneous in-person interpretation to Mr Baharom during the balance of the hearing, with the interpreter available if required.

Following Mr Baharom’s evidence, his representative informed the Commission that Mr Baharom considered that some aspects of the interpretation may have been inaccurate or confusing. Whilst giving evidence Mr Baharom did not suggest so. I raised the issue with the interpreter, whose interpretation had been given upon a sworn affirmation. I was satisfied with the interpreter’s explanations. My assessment of the interpretation was that the process was orthodox and professional. I invited the applicant to provide details at or immediately following the hearing of specific concerns. None were provided. I determine this matter based on the complete body of evidence before me. To the extent possible, as I am satisfied that the applicant’s evidence as interpreted into English appears to have reflected what he stated in the Malay language.

I heard evidence from four persons:

Mr Badrin Baharom (applicant);

Mr Gary Deutrom (General Manager, MBL Proteins);

Mr Jordan Pickering (Divisional Manager, Keith); and

Ms Claire Whitehouse (Human Resources and WHS Manager).

There are factual disputes. I make some observations on the evidence.

Mr Baharom was an honest and conscientious witness. With one caveat, I generally accept his evidence. However, his recall of the detail of the meeting he…

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: [2024] FWC 2706
Decision Date: 27 SEPTEMBER 2024

CaseChat Overview and Summary

This matter concerns an application for unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth) (FW Act) made by Mr Badrin Baharom (Mr Baharom) against his employer, Master Butchers Co-operative Limited (Master Butchers). The applicant was a casual factory hand employed at the respondent’s Keith site in regional South Australia. He was dismissed on 11 June 2024. Mr Baharom contends that the dismissal was unfair. The respondent contends that the dismissal was a genuine redundancy. The matter was heard in Adelaide on 12 September 2024. The Deputy President found the dismissal unfair and ordered compensation of $19,786 plus superannuation. The dismissal was not a genuine redundancy because the employer failed to consult with Mr Baharom prior to dismissal as required by the Manufacturing and Associated Industries and Occupations Award 2020 (Manufacturing Award). Furthermore, the dismissal was unfair because it was based on a lack of procedural fairness and no consideration of Mr Baharom’s vulnerability as a migrant worker in regional Australia with limited command of English. The employer failed to give him an opportunity to have a support person present or to take advice on matters impacting his interests, and it failed to pay him one week’s notice despite knowing it was owed.

Orders