Mr Dallas Leslie Mildenhall v Multifert Pty Ltd
[2025] FWC 281
•6 FEBRUARY 2025
| [2025] FWC 281 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Dallas Leslie Mildenhall
v
Multifert Pty Ltd; Multiquip Pty Ltd; and Mr Dino Carusi
(C2024/7240)
| COMMISSIONER RIORDAN | SYDNEY, 6 FEBRUARY 2025 |
Application to deal with contraventions involving dismissal
On 9 October 2024, Mr Dallas Leslie Mildenhall (the Applicant) filed a general protections application involving dismissal (the Application) to the Fair Work Commission (the Commission), alleging that he was dismissed by Multifert Pty Ltd; Multiquip Pty Ltd; and Mr Dino Carusi (the Respondents) in contravention of Part 3-1 of the Fair Work Act 2009 (Cth) (the FW Act).
On 22 October 2024, the Respondents filed a response to the Application, raising a jurisdictional objection on the grounds that the Applicant was not dismissed within the meaning of s.386 of the FW Act. The Respondent stated the Applicant was made genuinely redundant, in accordance with s.385 of the FW Act. Section 385 provides that:-
“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
(a) the dismissal was not a case of genuine redundancy.”
The Respondent also relied on s.389 of the FW Act, which provides that:-
“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.”
Section 365 of the FW Act sets out when the Commission can deal with a general protections application involving dismissal:
“365 Application for the FWC to deal with a dismissal dispute
If:
(b) a person has been dismissed; and
(c) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”
On 12 November 2024, Directions were issued by the Commission for the filing of submissions and the matter was listed for a Jurisdictional Hearing by Video using Microsoft Teams on 31 January 2025.
This decision determines the jurisdictional issue of whether the Applicant was ‘dismissed’ for the purposes of his s.365 application.
Disputes as to dismissal in s.365 applications
In Coles Supply Chain v Milford,[1] the Full Court of the Federal Court stated:
“To summarise, when an application is purportedly lodged under s 365 it is open to a respondent to assert that there has been no dismissal, so giving rise to a dispute on that question. Such a dispute falls to be determined not under s 368 but under s 365 itself. It is an antecedent dispute going to the entitlement of the applicant to apply. It is also open to a respondent to admit that a dismissal has occurred but dispute that the dismissal took effect within 21 days of the date that the application was filed. Such a dispute may give rise to an issue under s 366(1), involving as it does a question as to whether it is necessary for the FWC to determine whether more time should be “allowed” for the application to be made under s 365. That too is an antecedent dispute, going to the question of whether an application has been made. It is a dispute that must be resolved before the powers conferred by s 368 can be exercised at all.”[2]
As a result of this decision of the Full Court, I am obligated to make findings of fact in determining whether the Applicant has been dismissed before any Certificate can be issued under s.368 of the FW Act.
The term ‘dismissed’ is defined in s.386(1) of the FW Act as a situation where:
“(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
However, s.386(2) of the FW Act provides that a person has not been dismissed if:
“(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or the end of the season; or
(b) the person was an employee:
(i)to whom a training arrangement applied; and
(ii)whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i)the demotion does not involve significant reduction in his or her remuneration or duties; and
(ii)he or she remains employed with the employer that effected the demotion.”
It is not in dispute, and I find, that the circumstances referred to in s.386(2) of the FW Act are not relevant to the present case.
The Respondent has argued that the Applicant has not been ‘dismissed’ because he was genuinely made redundant. However, the Respondent has made this argument via reference to the matters contained in ss.385 and 389 of the FW Act. These matters are not relevant to the present general protections application involving dismissal.
Instead, I am required to determine whether there has been a ‘termination on the employer’s initiative’ in accordance with the meaning of ‘dismissed’ contained in s.386 of the FW Act. “Termination at the initiative of the employer” refers to a termination brought about by an employer which is not agreed to by the employee.[3]
Consideration
I agree with the Respondent that they have the capacity to “restructure its business as it sees fit” as long as the Respondent has complied with its necessary consultation obligations. However, this matter does not revolve around any consultation process or obligations but merely the cessation of the Applicant’s employment. I have taken this into account.
The Respondent took the Commission to a number of cases which clearly stated the jurisprudence in relation to genuine redundancy being a legal bar or exclusion to a decision of the Commission in relation to unfair dismissal. I acknowledge that submission. However, as stated above, this matter is not an unfair dismissal application. It is a general protections application so ss.385 and 392 of the FW Act are irrelevant. I have taken this into account.
The Applicant was asked to attend a meeting on 23 September where he was advised that his position was being made redundant. This decision was confirmed by correspondence on 25 September which said:-
“The purpose of this letter is to confirm the outcome of a recent discussion with management on 23/09/2024. Your role with the company has been made redundant and your employment will end as of Wednesday 25th September 2024.”
I have taken this into account.
The Explanatory Memorandum to the Fair Work Bill (2008) states, in relation to the purposes of what became enacted as s.386(1) of the FW Act:-
“This clause sets out the circumstances in which a person is taken to be dismissed. A person is dismissed if the person’s employment with his or her employer was terminated on the employer’s initiative. This is intended to capture case law relating to the meaning of ‘termination at the initiative of the employer’ (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200).
Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Conduct includes both an act and a failure to act (see the definition in clause 12).
Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations:
· where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or
· where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign.”
I have taken this into account.
The Full Court of the Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No 2) (Mohazab)[4] relevantly stated:-
“In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.”
The Applicant’s role was being upgraded and moved from Griffith, a town in regional NSW, to Sydney, some 570 km away. The Applicant’s role was upgraded to a national role and no longer existed in Griffith. The Applicant was advised that he could apply for the national role. I have taken this into account.
The Applicant’s unchallenged testimony is that:-
“In the meeting I never agreed to being made redundant or resigned from my employment.
…
I wanted to continue working for Multiquip and if I was not made redundant, I would have continued working there.”
I have taken this into account.
For convenience, section 365 of the FW Act states:-
“365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”
(My emphasis)
I note that this provision only applies to an alleged contravention of Part 3.1 of the FW Act. Part 3.1 encapsulates sections 334 – 378 of the FW Act only. I have taken this into account.
Conclusion
I am satisfied and find that the unfair dismissal provisions of the FW Act are not relevant to this Application on the basis that the Application is in relation to the general protections provisions of the FW Act.
I am satisfied and find that the Applicant was terminated at the initiative of the Respondent in accordance with the definition of section 386(1) of the FW Act. The Applicant did not resign, he was made redundant. The Applicant did not ask for a redundancy, nor did he volunteer for the redundancy.
The jurisdictional objection of the Respondent is dismissed.
I so Order.
The Application will be scheduled for a Conciliation Conference in the near future.
COMMISSIONER
[1] [2020] FCAFC 152.
[2] Ibid at [67].
[3] Khayam v Navitas English Pty Ltd t/a Navitas English[2017] FWCFB 5162 at [75].
[4] (1995) 62 IR 200.
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