DECISION

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

Mr (Garth) Scott Knack
v
SMEC Services Pty Ltd
(U2014/14138)

COMMISSIONER SPENCER

BRISBANE, 14 MAY 2015

Application for relief from unfair dismissal - jurisdictional objection - genuine redundancy.

Introduction

[1] This decision relates to an application made by Mr Scott Knack (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 SMEC Services Pty Ltd (the Respondent) was harsh, unjust or unreasonable. The Applicant was employed as a Business Management Systems (BMS) Manager and BMS Representative. The Applicant contended he was covered by the Clerks - Private Sector Award 2010 (the Award), however the Respondent submitted that the Applicant’s job was not covered by the Award, or any other Modern Award, or Agreement.

[2] The Applicant was notified that his job had been made redundant on 26 November 2014. The Applicant’s dismissal took effect on 28 November 2014. This application was filed within the required timeframe.

[3] The Respondent raised a jurisdictional objection in relation to the application that the termination of the Applicant’s employment, was due to genuine redundancy.

[4] A Directions conference was held and Directions were issued for the filing of submissions in relation to the jurisdictional objection and the substantive unfair dismissal application. The Applicant sought to file further material and this was granted. The Applicant also later raised a series of queries in relation to the redundancy and made additional arguments. The Respondent was directed to respond to these matters, prior to the hearing, in order that the Applicant was aware of the arguments in response.

[5] The Applicant was self-represented. After hearing the submissions in relation to s.596 of the Act, having regard to the arguments to be raised in relation to the issues pertaining to the redundancy, and the lack of company representatives with any experience to conduct the hearing, and that these personnel were also required to provide evidence, the Respondent was granted permission for legal representation. The Applicant was provided with procedural assistance in relation to preparing for the hearing, and he was given latitude to give additional comprehensive submissions and evidence at the hearing. Following the hearing of the matter, the Applicant was provided with a further opportunity to make additional submissions on the ‘Grove’ cases referred to by the Respondent in the final submissions in the hearing.

[6] Whist not all of the evidence and submissions in the matter are referred to in this decision, all of such have been considered.

Relevant Provisions

[7] The application has been made pursuant to s.394 of the Act, which provides as follows:

394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

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 3184
Decision Date: 14 MAY 2015

CaseChat Overview and Summary

Mr Garth Scott Knack, the applicant, applied for relief from unfair dismissal against SMEC Services Pty Ltd, the respondent. The matter was heard in the Fair Work Commission, which has the authority to hear and determine claims related to unfair dismissal. The dispute arose when Mr Knack was dismissed by the respondent, and he sought to challenge the dismissal on the grounds that it was unfair. The respondent argued that the dismissal was a genuine redundancy, which is a permitted reason for dismissal under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the dismissal of Mr Knack constituted an unfair dismissal. The Commission was required to consider whether the respondent had valid grounds for the dismissal and whether the process followed in dismissing Mr Knack was fair. The Commission also had to determine whether the dismissal was a genuine redundancy, as claimed by the respondent. The Commission needed to examine the evidence and arguments presented by both parties to decide on these issues.

In delivering the decision, the Commission noted that the respondent had provided evidence to support its claim that Mr Knack's position was made redundant due to changes in the business. The Commission found that the respondent had taken reasonable steps to consult with Mr Knack and other employees about the proposed changes and the potential impact on their positions. The Commission considered that the respondent had acted in good faith and that the dismissal was not motivated by any discriminatory or retaliatory reasons. The Commission concluded that the dismissal was a genuine redundancy and, therefore, not unfair. Consequently, the application for relief from unfair dismissal was dismissed.

The Fair Work Commission dismissed the application for relief from unfair dismissal and found that the dismissal was a genuine redundancy. The Commission did not make any orders as the application was dismissed.

Orders