DECISION

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

Mr Charles Balchin
v
Aussie Professional Pest Control Services
(U2020/6266)

COMMISSIONER HUNT

BRISBANE, 15 FEBRUARY 2021

Application for an unfair dismissal remedy – jurisdictional objection – genuine redundancy – position no longer required to be performed by anyone – whether dismissal complied with the Small Business Fair Dismissal Code – casual Employee – ex gratia payment made on termination exceeds amount that would otherwise be ordered – no order of compensation

[1] On 6 May 2020, Mr Charles Balchin made an application under s.394 of the Fair Work Act 2009 (the Act) alleging that his dismissal from Aussie Professional Pest Control Services (the Respondent) was harsh, unjust or unreasonable.

[2] In his Form F2 – Unfair Dismissal Application, Mr Balchin stated that the reasons given for his dismissal were due to a downturn in business due to COVID-19 and a recent review of operational requirements, as well as the Respondent not having sufficient workload or financial means to support his role.

[3] Mr Balchin stated that the review of the Respondent’s operation requirements was not explained to him; he was able to perform his role as well as other staff and has more experience and hours in pest control than some of his former colleagues. Further, Mr Balchin believed that the hours of work from the Respondent could have been shared between himself and other employees instead of his employment ending. He considered that he had been singled out unfairly.

[4] Mr Balchin also stated that he was told that the downturn in business the Respondent experienced was not enough to entitle it to JobKeeper payments for its employees.

[5] On 19 May 2020, the Respondent filed a Form F3 – Employer response to the application. In the Form F3, although the Respondent indicated there were no jurisdictional objections to the application, the Respondent stated that Mr Balchin’s employment as a casual employee was terminated as Mr Balchin’s role was no longer required due to a loss of business as a result of COVID-19.

[6] Mr Clinton Taylor, owner/operator stated that he was taking up part or all the pest control technician roles within the business. Further, the Respondent stated that the JobKeeper scheme was not a compulsory scheme to enrol into. The Respondent stated that all employees’ roles were being assessed on a weekly basis.

Legislation

[7] Section 385 of the Act provides that a person has been unfairly dismissed if the Commission is satisfied that:

(a) the person has been dismissed; and

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

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

[8] Section 396 of the Act sets out the following:

“The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a)…

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.

Keep reading for free

Create a free CaseChat account to read Mr Charles Balchin v Aussie Professional Pest Control Servic... and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] FWC 791
Decision Date: 15 FEBRUARY 2021

CaseChat Overview and Summary

The matter involved Mr Charles Balchin, who brought an application for unfair dismissal remedy against Aussie Professional Pest Control Services. The Federal Circuit and Family Court of Australia was tasked with determining whether the dismissal complied with the Small Business Fair Dismissal Code, particularly in relation to a genuine redundancy. Mr Balchin, a casual employee, claimed his dismissal was unfair and sought compensation. Aussie Professional Pest Control Services argued that Mr Balchin's position had genuinely been made redundant and the dismissal was handled in accordance with the applicable laws.

The central legal issues before the court were whether Mr Balchin's dismissal was genuinely redundant and whether it complied with the Small Business Fair Dismissal Code. Additionally, the court needed to determine if the ex gratia payment made to Mr Balchin exceeded the compensation he would otherwise be entitled to. The court examined the nature of Mr Balchin's employment, the reasons for his termination, and the procedural fairness of the dismissal process.

The court found that Mr Balchin's position had genuinely been made redundant, as the nature of the work had changed significantly and there was no longer a need for anyone to perform the role he had. The court also concluded that the dismissal complied with the Small Business Fair Dismissal Code, as the employer had followed the necessary procedures. Furthermore, the court noted that the ex gratia payment made to Mr Balchin exceeded the amount he would have been entitled to under the Fair Work Act. As a result, the court made no order of compensation for Mr Balchin.

In light of the findings, the Federal Circuit and Family Court of Australia dismissed Mr Balchin's application for unfair dismissal remedy. The court held that the dismissal was justified and procedurally fair, with the ex gratia payment adequately addressing any potential compensation.

Orders