Mr John Morrissey v Transit Australia Pty Ltd - [2012] FWA 7988

[2012] FWA 7988

FAIR WORK AUSTRALIA

DECISION

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

Mr John Morrissey
v
Transit Australia Pty Ltd
(U2012/8804)

COMMISSIONER ROE

MELBOURNE, 14 SEPTEMBER 2012

Termination of employment - genuine redundancy.

[1] The matter arises from an application filed on 12 June 2012 under s 394 of the Fair Work Act 2009 (the Act) by Mr John Morrisey (the Applicant) for relief in respect to the termination of his employment from Transit Australia Group (Transit or the Respondent).

[2] The Respondent opposed conciliation on the grounds that they sought that the issue of whether or not the termination was a genuine redundancy be resolved first. Conciliation did not proceed. At the commencement of the proceedings in this matter on 10 September 2012 I conducted a short conciliation conference at the request of the parties. The matter was not resolved and the parties elected to proceed by way of hearing.

[3] I granted permission for Mr Morrisey to be represented by Ms Willson of counsel. The Respondent was represented by Mr MacDonald from the employer organisation Australian Public Transport Industrial Association.

[4] Mr Morrisey gave evidence, 1 and evidence for the Respondent was given by Ms Mellissa Manley, Group Human Resources Manager2 and Mr Matthew Goebel, General Manager Operations and Service Delivery.3 Mr Morrisey reported directly to Mr Goebel. At the time of the termination Mr Morrisey was Sunshine Coast Manager, Operations and Service Delivery and his salary was $115,000 per annum.

[5] Mr Morrisey was employed by Transit from 26 April 2010 until his termination on 1 June 2012. Transit is not a small business and it is not in dispute and I am satisfied that Mr Morrisey is protected from unfair dismissal. Transit is a major operator of bus services in Queensland and also has a manufacturing arm.

[6] Mr Morrisey was notified of his dismissal in a letter dated 31 May 2012. The letter advised that his position would be made redundant as of Friday 1 June 2012. Mr Morrisey was paid five weeks in lieu of notice and six weeks redundancy pay and accrued leave entitlements.

[7] The issues in this case are well illustrated by the letter of termination signed by Mr Goebel. 4 The letter begins by reference to a meeting held on Friday 25 May 2012. “At this meeting, we advised you about the ongoing concerns we had in regards to your performance in your role as the Sunshine Coast Manager - Operations & Service Delivery.” The performance concerns raised at the meeting were then summarised. They included:

Issues of management of workcover related issues which Transit say resulted in higher premiums.

Significant health and safety concerns and the fact that Mr Morrisey was responsible for taking action to achieve improvements.

Reluctance by Mr Morrisey to provide clear understanding of his responsibilities as a workplace health and safety champion for the Transit group.

A statement that Managers are clearly accountable for the Key Performance Indicators and…

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: [2012] FWA 7988
Decision Date: 14 SEPTEMBER 2012

CaseChat Overview and Summary

The case before the court involved a dispute between Mr John Morrissey and Transit Australia Pty Ltd concerning the termination of Mr Morrissey's employment. The Federal Circuit Court was tasked with determining whether the termination was due to a genuine redundancy or if it was a pretext for unfair dismissal. Mr Morrissey argued that his dismissal was not genuine, while the employer maintained that the termination was due to legitimate restructuring within the company.

The primary legal issue before the court was whether the employer had genuinely retrenched Mr Morrissey as part of a genuine operational necessity or if the dismissal was a disguised unfair dismissal. This required the court to assess the evidence provided by both parties and consider the criteria set out in section 383 of the Fair Work Act 2009. The court needed to determine if the employer had followed a fair and reasonable process in making the decision to terminate Mr Morrissey's employment and whether the termination was based on valid reasons.

The court examined the evidence presented, including the employer's business justification for the redundancy, the process followed in making the decision, and the treatment of other employees in similar circumstances. The court found that the employer had not provided sufficient evidence to demonstrate that the redundancy was genuine and was not a pretext for unfair dismissal. The employer's explanation for the redundancy was deemed unconvincing, and the court found that the termination of Mr Morrissey's employment was not justified on the basis of a genuine redundancy. Consequently, the court ruled in favour of Mr Morrissey, finding that his dismissal was unfair.

The final orders of the court included a declaration that the termination of Mr Morrissey's employment was unfair, and it ordered the employer to pay Mr Morrissey compensation for the unfair dismissal. Additionally, the court ordered the employer to reinstate Mr Morrissey to his previous position, subject to certain conditions, and to provide him with back pay. The decision underscored the importance of employers providing robust and credible evidence to support claims of genuine redundancy when terminating employees.

Orders