[2015] FWC 2883[Note: Appeals pursuant to s.604 (C2015/4001, C2015/4002, C2015/4003 and C2015/4004) were lodged against this decision - refer to Full Bench decision dated 22 July 2015 [[2015] FWCFB 4760] for result of appeal.]

FAIR WORK COMMISSION

DECISION

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

Mr Bevan Logovik
v
Kestrel Coal Pty Ltd
(U2014/13400)

COMMISSIONER SPENCER

BRISBANE, 28 APRIL 2015

Application for relief from unfair dismissal - jurisdictional objection - genuine redundancy - whether Respondent had an obligation to exhaust redeployment opportunities in associated entities, Rio Tinto Ltd and if so was this done.

Introduction

[1] This decision relates to an application made by Mr Bevan Logovik (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy alleging that the termination of his employment from Kestrel Coal Pty Ltd (the Respondent) was harsh, unjust or unreasonable. The Applicant was employed as an operator/maintainer at the Kestrel Underground Coal Mine under the Kestrel Coal Workplace Agreement 2009 (the Agreement).

[2] There are three other related applications which were heard jointly, by consent, with this application (U2014/13399 - Mr Tony McDonell, U2014/13401 - Mr Daniel Stickley and U2014/13402 - Mr Leslie Cochrane). Separate decisions in each matter have been issued, however, given the applications address similar issues, there is some overlap of the evidence and commonality in the reasons.

[3] The Respondent raised a jurisdictional objection pursuant to s.385(d) in relation to the applications, that the terminations of the Applicants’ employment were each due to genuine redundancy, and therefore, they have not been unfairly dismissed. Where the Respondent raises a jurisdictional objection, the onus is on the Respondent to satisfy the Commission of their case. 1

[4] Directions were issued for the filing of submissions in relation to the jurisdictional objection and the substantive unfair dismissal applications. The Applicants’ primary argument, that the dismissals were not cases of genuine redundancy, was on the basis that the jobs were still required to be performed (s.389(1)(a)), and it would have been reasonable to redeploy the Applicants, within an associated entity of the Respondent: the Rio Tinto Coal Australia (RTCA) Group, of which the Respondent is a subsidiary company, or within the Rio Tinto Ltd Group (s.389(2)). The Applicants did not pursue the argument that requirement of consultation, as per s.389(1)(b), had not been met, however, they did not concede that it had been met by the Respondent.

Orders requiring the production of documents

[5] The Applicant had earlier made an application, for Orders requiring the production of documents, prior to the matters being allocated to the Commission, as currently constituted. On allocation for arbitration to the Commission as currently constituted, these matters had not yet been dealt with.

[6] In summary terms, the Applicants sought three Orders, directed to Kestrel Coal Pty Ltd (the Respondent), Rio Tinto Coal Australia Pty Ltd and to Rio Tinto Ltd.

[7] The first two of the Orders sought were in similar terms. These…

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: [2015] FWC 2883
Decision Date: 28 APRIL 2015

CaseChat Overview and Summary

In Mr Bevan Logovik v Kestrel Coal Pty Ltd, the applicant, Mr Logovik, sought relief from an unfair dismissal decision. The dispute arose from his termination by the respondent, Kestrel Coal Pty Ltd, which claimed that the dismissal was due to genuine redundancy. The matter was heard in the Fair Work Commission. The applicant contested the genuineness of the redundancy, arguing that the respondent had failed to exhaust redeployment opportunities within associated entities, specifically Rio Tinto Ltd, before dismissing him.

The primary legal issue before the court was whether the respondent was obligated to explore redeployment opportunities within associated entities and, if so, whether this obligation was met. The court had to determine if the dismissal was procedurally fair and if the respondent took all reasonable steps to avoid making the applicant redundant. The court also considered the nature of the obligations of associated entities in the context of redundancy, and the extent to which the respondent was required to pursue redeployment within these entities.

The court found that the respondent did have an obligation to consider redeployment within associated entities but held that the respondent had taken reasonable steps to explore such opportunities. It was determined that the dismissal was procedurally fair and met the criteria for genuine redundancy. The court concluded that the respondent had acted within its rights in dismissing Mr Logovik and dismissed the application for relief from unfair dismissal. The court's decision was based on a comprehensive assessment of the evidence presented regarding the respondent's efforts to redeploy Mr Logovik and the overall fairness of the dismissal process.

Orders