Mr Gim Pheng Ho v A.P. Eagers Limited - [2010] FWA 5897

[2010] FWA 5897

FAIR WORK AUSTRALIA

DECISION

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

Mr Gim Pheng Ho
v
A.P. Eagers Limited
(U2009/13208)

COMMISSIONER SIMPSON

BRISBANE, 27 AUGUST 2010

Termination of employment- Jurisdiction - Not a Genuine Redundancy-Harsh, Unjust and Unreasonable- Reinstatement inappropriate - Compensation Ordered

INTRODUCTION

[1] This matter concerns an application under s 394 of the Fair Work Act 2009 (“the Act”) by Mr Gim Pheng Ho (“the Applicant”) who alleges that the termination of his employment with A.P Eagers Limited (“the Respondent”) was unfair in accordance with the definition contained within s 385 of the Act.

[2] The application was filed on the 23 October 2009 and a conciliation conference was conducted on 13 November 2009 which was not successful in resolving the matter. The respondent subsequently raised a jurisdictional objection based upon the applicant being the subject of a genuine redundancy however the respondent advised that this issue could be dealt with as part of the arbitration hearing for the matter generally.

[3] Following a directions conference with the parties before Commissioner Spencer on 8 February 2010 the matter was listed for hearing on Wednesday 2 June 2010 and Thursday 3 June 2010 in Brisbane. At the hearing the Applicant was represented by Mr Daniel Pratt as Counsel instructed by Mr Ethan Emery of Milner Lawyers and the Respondent was represented by Mr John Merrill as Counsel who was instructed by Mr Joseph Ryan of Lander & Rogers Lawyers.

THE LEGISLATION

[4] Section 385 of the Act provides that a person has been unfairly dismissed if Fair Work Australia is satisfied that:

(a) the person has been dismissed; and

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

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

[5] It is common ground that the Applicant was dismissed on the 9 October 2009, that the Respondent was not subject to the Small Business Fair Dismissal Code, and that no modern award or enterprise agreement applied to the Applicant at the time his employment was terminated.

[6] The principle issues in contention between the parties are whether Fair Work Australia (FWA) has jurisdiction to hear and determine the application as the Respondent contended that the termination was a case of genuine redundancy and if the dismissal was not a case of genuine redundancy, whether the dismissal was harsh, unjust and unreasonable within the meaning of the Act.

[7] The Applicant contended that the dismissal was not a case of genuine redundancy for the following reasons. That the changes in the operational requirements of the Respondent’s enterprise did not result in the Applicant’s job no longer being required to be performed by anyone; and/or in the alternative it was reasonable in all of the circumstances for the Applicant to be re-deployed within the Respondent’s enterprise or the enterprise of an associated entity of the Respondent.

[8] The Applicant has argued…

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: [2010] FWA 5897
Decision Date: 27 AUGUST 2010

CaseChat Overview and Summary

In the matter of Mr Gim Pheng Ho versus A.P. Eagers Limited, the Federal Court of Australia was tasked with resolving a dispute arising from the termination of Mr Ho's employment. The crux of the matter was whether Mr Ho's dismissal constituted a genuine redundancy or if it fell under the category of being harsh, unjust, or unreasonable. The latter would warrant a remedy under section 383 of the Fair Work Act 2009.

The central legal issue before the court was whether the employer had valid reasons to terminate Mr Ho's employment and whether the dismissal was handled in a manner that complied with the principles of procedural fairness and reasonableness. The employer contended that the termination was due to a genuine redundancy, while Mr Ho argued that his dismissal was unjust and constituted an unfair termination. The court had to determine the legitimacy of the employer's justification and the fairness of the process followed in terminating Mr Ho's employment.

The court found that the employer's justification for redundancy was not bona fide, as the employer had not genuinely considered Mr Ho for the position that was allegedly made redundant. Moreover, the court determined that the process leading to the termination was unfair, leading to the conclusion that the dismissal was harsh, unjust, and unreasonable. Consequently, the court ruled that reinstatement was not an appropriate remedy given the circumstances. Instead, the court ordered compensation for Mr Ho, reflecting the unfairness of the dismissal and the breach of his employment rights.

The court ordered that A.P. Eagers Limited pay Mr Gim Pheng Ho compensation in the sum of $25,000. This amount was determined to be appropriate given the nature of the breach and the impact on Mr Ho's employment security and professional reputation.

Orders