Mr Joshua Samuel Wilson v Invest with Phoenix Pty Ltd
[2023] FWC 2712
•7 NOVEMBER 2023
| [2023] FWC 2712 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Joshua Samuel Wilson
v
Invest With Phoenix Pty Ltd
(U2023/5833)
| DEPUTY PRESIDENT CROSS | SYDNEY, 7 NOVEMBER 2023 |
Application for an unfair dismissal remedy
On 30 June 2023, Mr Joshua Wilson (the Applicant) lodged an application in the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) (the Application), against Invest With Phoenix Pty Ltd (the Respondent).
The Applicant commenced full-time employment as a Director of the Respondent on 1 July 2022. The Applicant claimed to have been employed from at least 17 September 2021. The Applicant was dismissed by the Respondent on 23 June 2023.
In the hearing of the matter the Applicant represented himself. The Respondent was represented, without objection by the Applicant, and with permission, by Mr Twyford, of Twyford Law.
On 15 August 2023, directions were issued to program the manner in which the Application was to proceed to hearing (the Directions). The parties complied with the Directions. In particular:
(a) On 28 August 2023, the Applicant filed an Applicant’s Outline of Submissions with attachments;
(b) On 5 October 2023, the Respondent filed an Outline of Submissions, together with attachments and a Witness Statement of Mr Manmohit Singh Rangpuri (Mr Singh); and
(c) The Applicant filed an email said to be in reply on 12 October 2023.
The Hearing of the Application occurred on 13 October 2023 (the Hearing). The Applicant was subject to cross-examination, while the Applicant did not seek to question Mr Singh.
Background Facts
It was an agreed fact that the Respondent had less than 15 employees.
Between 17 September 2021 and 24 April 2022, the Applicant received the following payments from the Respondent (the FY22 Payments):
17 September 2021 $1,020.00
11 October 2021 $1,000.00
11 November 2021 $5,000.00
15 November 2021 $6,000.00
10 December 2021 $2,000.00
17 January 2022 $6,000.00
24 March 2022 $3,000.00
24 April 2022 $12,000.00
The FY22 Payments related to the Applicant performing some ad hoc work in setting up the Respondent’s Sydney operation between September 2021 and April 2022. These tasks included starting up the company, setting up the infrastructure for clients that were going to come from India, setting up the office, getting the furniture, overseeing the fit-out, introducing the accountants and other various people useful to the company, assisting with the introduction of the political theatre and other public relations.[1] The FY22 Payments were not taxed prior to being paid to the Applicant.[2]
On 1 July 2022, the Applicant was employed by the Respondent as a Director, on a salary of $120,000.00 per annum. The Letter of Appointment was as follows:
We are pleased to offer you permanent full-time employment with Phoenix Pty Ltd (the ‘Company’) as Director, on the terms and conditions set out in the enclosed permanent employment agreement.
To accept this offer of permanent employment, please sign, date and return to me a copy of the enclosed permanent employment agreement by 1st July 2022 and retain a copy for your records.
As soon as possible, please complete and return the following:
1. Tax File Number Declaration Form; and
2. Superannuation (Super) Standard Choice Form.
We also enclose a copy of the Fair Work Information Statement for your information.
If you have any questions about the employment agreement, please contact us.
Yours sincerely,
Manmohit Pahul Singh Rangpuri
The Employment Agreement provided at Clause 14.1 Termination on Notice, as follows:
14.1 Termination on notice
(a) Following any probation Period applying to your employment, your employment may be terminated at any time by either party giving the other written notice in accordance with the notice.
(b) where your employment is terminated by either party in accordance with clause 14.1(a), we may, at our absolute discretion:
(1) pay you in lieu of all or part of the notice period; or
(2) require you to work for part of the notice. And pay you in lieu of the balance of the period.
(c) if either party gives the other written notice ending the employment under clause 14.1, without limiting the directions we may give you, during any period of suspension referred to in clause 13.1 or during any notice referred to in this clause 14.1, we may direct you to do one or more of the following:
(1) not attend any premises at which our business is conducted, but remain contactable and available to perform any Duties required by us (including in relation to handover of your Duties);
(2) not perform all or part of your Duties under this Agreement;
(3) cease holding you Position for the duration of the suspension period or any Notice Period (in which case, we may appoint another person to your Position on an interim basis);
(4) cease all contact with our clients, customers, suppliers, employees or contractors; and
(5) perform duties which are different to your normal Duties, provided that you have the necessary skills and competence to perform those duties.
On 23 June 2023, the Applicant received a WhatsApp message informing him of the termination of his employment and one other employee, as follows:
Pahul:
Hi Kartikey & Josh
Final board meeting has been done between all members and we all have concluded then at this point of time we will not be able to continue with your employment with IWP and other associated companies due to financial constraints which are caused by the Australian Govt regulations changes in 188 visas.
Requirements of salaries and other conditions submitted by both of you in the last meeting are not feasible at this point of time due to financial constraints & difficulties.
Please send us in writing whatever pending amount is due towards the company and we will clear it off in the next 30-60 business days.
Equity share of Kartikey 2.5% will remain intact and he can choose to sell whenever it seems necessary with the consent of the board members. Unfortunately Josh’s equity ESOP share 2.5% will not go ahead as 3 years of total employment is not finished yet.
Please return all the company assets (Phone, cars, laptop & other assets etc) to Karen at Sydney office Monday morning.
Josh’s car (BMW) will be transferred back under his name. Difference amount will have to be settled by him which company paid for in exchange for his car Subaru.
On behalf of all shareholders I would live to say thank you for everything that you have done for this company and your presence will be missed in this organisation.
Once financial conditions are better then we will be able to bring you both back on board for further growth of this organisation.
You can choose to submit resignation or we can issue and end of employment letters from our end.
Once again thank you for everything.
On 27 June 2023, the Applicant received a letter terminating his employment in the following terms:
Termination of your employment
I refer to my earlier WhatsApp message sent 23 June 2023. As you are aware, the Company’s financial position does not permit us to continue employing you and we therefore now more formally write to you to confirm that Invest with Phoenix Pty Ltd hereby gives you 12 weeks’ notice of termination of your employment in accordance with clause 14.2 (a) of your contract of employment with us.
We do not require you to provide services to us during this notice period. However, your
obligations under the contract concerning the company’s confidential information and
intellectual property and restraints continue and we remind you of your obligations in
relation to this.….
The above letter went on to assert that due to the provision of a car, loans, and other amounts, that the Applicant in fact owed the Respondent monies.
Applicant’s Evidence
The Applicant stated he joined the Respondent in the capacity of Operations Manager in July 2022, though in evidence that was corrected to a time in 2021. During his time with the Respondent, he was involved in various aspects of the business, including business sourcing, client interactions, and company operations. His role included collaborating closely with Mr Singh (the CEO) and other staff members to build the company's business offerings and cater to the needs of their clients.
The Applicant stated he was instrumental in establishing connections with numerous business owners. These connections were aimed at creating suitable business opportunities for their clients that aligned with the visa criteria of the s.188 visa program. The Applicant also actively engaged with legal and financial firms to ensure proper documentation and legal support for their business operations.
The Applicant stated that his association with the Respondent took an unexpected turn when he was notified of his redundancy and termination in June 2023. That action was, he said, taken without following proper redundancy procedures. He was subsequently removed from the company without access to his work-related resources. This abrupt termination caused the Applicant financial hardship and led to his placement on a mental health plan due to the distressing situation.
The Applicant stated he has been denied access to relevant documentation, including minutes of meetings, that could shed light on the decisions and actions taken by the company.
Respondent’s Evidence
Mr Singh stated that he first met the Applicant in 2012, when he was a building manager of a building where Mr Singh was a tenant. In 2021, when he came back to Australia, the Applicant helped him find an apartment.
Mr Singh stated that during 2021, the Applicant and he had a number of discussions surrounding the possibility of the Applicant contracting his services. Around that time, Mr Singh also explained to the Applicant what the Respondent’s business model was and how he wanted to bring it to Sydney. Through these discussions, the Applicant impressed Mr Singh as a salesman and also displayed good personal skills and some business understanding. Mr Singh concluded that the Applicant would be a good person to bring on-board and that the Respondent could trust him to help establish the Sydney office and liaise with clients.
Over the course of September 2021 to April 2022, the Applicant performed some ad-hock duties in setting up the Respondent’s Sydney operations. These tasks included things such as starting to set up the infrastructure for the clients that were going to come from India, setting
up the office, getting the furniture, overseeing the fit out, introducing the accounting people and PricewaterhouseCoopers, and other various people useful to the company, assisting with the introduction to the political theatre and other public relations. For this work, over the course of 17 September 2021 to 24 April 2022, the Applicant was paid EFT payments totalling $36,020.00.
Mr Singh stated that there were never any discussions with the Applicant over this time about the Applicant ever wanting to become an employee. Rather, in late 2021, the Applicant said words to the effect “I want to be a contractor”, to which Mr Singh replied “That suits us because this business isn’t set-up yet. Once it is set-up and making money then we can look at making us both employees.”
Towards the end of the 2022 financial year, the Applicant and Mr Singh had conversations to the effect that they both expressed a desire to “become employees” of the Respondent. The Applicant and Mr Singh agreed the business could sustain their salaries, of $120,000 for the Applicant and $113,000 for Mr Singh. On 1 July 2023, the Applicant prepared employment offers for both the Applicant and Mr Singh as directors of the Respondent.
The Respondent’s only business was to handle s.188 Visas, through the Australian Government Business Innovation and Investment (Provisional) Program (“the BIIP Program”).
In July 2022, the BIIP Program issued 9500 spots for its program. It published that there would be 880 spots immediately available and then they would revise the program and let the Respondent know when more spots are given.
By August, the 880 spots were consumed, and these were in fact Worldwide and not just India (which is the only country that the Respondent serviced). For August, September, and October of 2022, there were no new spots opened up or news of when they might be. On 25 October 2022, at around 11.00PM, it was announced on the news that 5000 spots were issued, but none eventually got released, and on around 15 December 2022, the government said it would not be issuing any spots for the BIIP Program for the rest of the year.
Mr Singh stated that the Respondent only did one visa for one country, and this was s.188 Visas from India. Therefore, when the spots did not open up in the end of 2022, the entire business revenue was wiped out. At this time, the Respondent had five staff and contractors, while there was no revenue and no sign of when it would start again.
On around 15 June 2023, the Applicant and also the Secretary of the parent company, Mr Kartikey Chauhan, requested a board meeting with the shareholders to discuss the current situation and also ask for increased salaries.
At the board-meeting of the Respondent on 22 June 2023, the Board decided the Applicant and other staff were not able to be sustained. On 23 June 2023, Mr Singh sent the Applicant the WhatsApp message referred to above. On 27 June 2023, Mr Singh signed the termination letter to the Applicant.
Mr Singh stated the Respondent only had one business and there was no other opportunity to re-deploy the Applicant. Further, the Respondent did not have an HR department at the time, and this was Mr Singh’s first experience in downsizing staff.
Applicant’s Reply
The Applicant filed an email said to be in reply on 12 October 2023, that stated:
Hi,
I would like to state I have yet received any documentation backing up the claim of termination breach to review mentioned in the redundancy letter dated 27th June 2023.
Can I please have this documentation to review?
Regards,
The Issues for Determination
The Respondent raises two jurisdictional objections to the Application. They are:
(a) The Applicant’s employment does not meet the minimum employment period; and
(b) The dismissal was a case of genuine redundancy.
Section 396 of the Act requires that before considering the merits of an application for an unfair dismissal remedy the Commission must decide a number of threshold issues. That section provides:
396 Initial matters to be considered before merits
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) whether the application was made within the period required in
subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.
[Emphasis added]
(a) Minimum Employment Period
Section 382 of the Act provides:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period....”
Section 383 of the Act provides:
“383 Meaning of minimum employment period
The minimum employment period is:
(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:
(i) the time when the person is given notice of the dismissal;
(ii) immediately before the dismissal; or
(b) if the employer is a small business employer—one year ending at that time.”
Section 384 of the Act defines “period of employment” as follows:
“384 Period of employment
(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.
(2) However:
(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:
(i) the employment as a casual employee was on a regular and systematic basis; and
(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and
(b) if:
(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and
(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and
(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised; the period of service with the old employer does not count towards the employee’s period of employment with the new employer.”
“Service” is defined by s.22 of the Act as follows:
“22 Meanings of service and continuous service General meaning
(1) A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period) that does not count as service because of subsection (2).
…
(2) An excluded period does not break a national system employee’s continuous service with his or her national system employer, but does not count towards the length of the employee’s continuous service.
(3A) Regulations made for the purposes of paragraph (2)(c) may prescribe different kinds of periods for the purposes of different provisions of this Act (other than provisions to which subsection (4) applies). If they do so, subsection (3) applies accordingly.
Meaning for Divisions 4 and 5, and Subdivision A of Division 11, of Part 2-2
(4) For the purposes of Divisions 4 and 5, and Subdivision A of Division 11, of Part 2- 2:
(a) a period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include:
(i) any period of unauthorised absence; or
(ii) any other period of a kind prescribed by the regulations; and
(b) a period referred to in subparagraph (a)(i) or (ii) does not break a national system employee’s continuous service with his or her national system employer, but does not count towards the length of the employee’s continuous service; and
(c) subsections (1), (2) and (3) do not apply.
...
(4A) Regulations made for the purposes of subparagraph (4)(a)(ii) may prescribe different kinds of periods for the purposes of different provisions to which subsection (4) applies. If they do so, paragraph (4)(b) applies accordingly.
When service with one employer counts as service with another employer
(5) If there is a transfer of employment (see subsection (7)) in relation to a national system employee:
(a) any period of service of the employee with the first employer counts as service of the employee with the second employer; and
(b) the period between the termination of the employment with the first employer and the start of the employment with the second employer does not break the employee’s continuous service with the second employer (taking account of the effect of paragraph (a)), but does not count towards the length of the employee’s continuous service with the second employer.
...
Meaning of transfer of employment etc.
(7) There is a transfer of employment of a national system employee from one national system employer (the first employer) to another national system employer (the second employer) if:
(a) the following conditions are satisfied:
(i) the employee becomes employed by the second employer not more than 3 months after the termination of the employee’s employment with the first employer;
(ii) the first employer and the second employer are associated entities when the employee becomes employed by the second employer; or
(b) the following conditions are satisfied:
(i) the employee is a transferring employee in relation to a transfer of business from the first employer to the second employer;
(ii) the first employer and the second employer are not associated entities when the employee becomes employed by the second employer.
Note: Paragraph (a) applies whether or not there is a transfer of business from the first employer to the second employer.
(8) A transfer of employment:
(a) is a transfer of employment between associated entities if paragraph (7)(a) applies; and
(b) is a transfer of employment between non-associated entities if paragraph (7)(b) applies.”
As Saunders C (as he then was) observed in Harris v Laing O’Rourke Australia Construction Pty Ltd:[3]
The relevant statutory regime may be summarised in the following way:
(a) An employee must have completed at least the minimum employment period to be eligible to bring an unfair dismissal claim against their employer (ss.382, 390 & 396 of the Act);
(b) For a person employed by a non-small business employer, the minimum employment period is six months (s.383 of the Act) [For a person employed by a small business employer, the minimum employment period is twelve months];
(c) An employee’s period of employment with an employer is the period of continuous service the employee has completed with their employer (s.384(1) of the Act);
(d) A period of “service” by an employee with their employer is a period during which the employee is employed by the employer, but does not include certain “excluded periods” (ss.12 & 22 of the Act);
(e) The expression “continuous service” is not defined in the Act. The ordinary meaning of “continuous service” is the period of unbroken service by an employee with an employer. However, the ordinary meaning of “continuous service” is affected by s.22 (s.12 of the Act);
(f) An “excluded period” does not break an employee’s “continuous service” with their employer, but does not count towards the length of the employee’s “continuous service” (s.22(3) of the Act). “Excluded periods” include a period of unauthorised absence and a period of unpaid leave or unpaid authorised absence, subject to certain exceptions (s.22(2) of the Act);
(g) Subsections 22(5) and (7) of the Act alter the ordinary meaning of “continuous service”. In effect, they deem service by an employee with one employer to be service with another employer if there is a transfer of employment within the meaning of s.22(7) of the Act. In addition, those provisions stipulate that, in the event of such a transfer of employment, the period between the termination of employment with the first employer and the commencement of employment with the second employer does not break the employee’s “continuous service” with the second employer, but the “gap” does not count towards the length of the employee’s “continuous service” with the second employer (s.22(5)(b) of the Act); and
(h) In order for an employee’s service with a previous employer to be deemed to be part of their “continuous service” with a subsequent employer as a result of a “transfer of employment”, one of the following sets of conditions must be satisfied (s.22(7) of the Act):
· First, the first and second employers must be “associated entities” and the “gap” in employment must not be more than three months; or
· Secondly, the first and second employers are not “associated entities” and the employee is a “transferring employee” in relation to a “transfer of business” within the meaning of s.311 of the Act.
It is plain from the references to a transfer of employment from the “first employer” to the “second employer” in s.22(5) and (7) of the Act that the deeming provisions in those sections do not apply unless the employee is employed by two different employers at two different points in time. The Act does not deem or otherwise permit an employee whose employment relationship with an employer comes to an end and is later re-employed by the same employer to have their earlier period of service with the employer combined with their later period of service as part of their “continuous service” with the same employer. Put another way, a “gap” between periods of employment with the same employer would not satisfy the ordinary meaning of “continuous service” because the service is broken and there is nothing in s.22 or elsewhere in the Act to alter this outcome. For those reasons, I agree with the conclusion reached in relation to this issue by Commissioner Spencer in Voican v Monadelphous Engineering Pty Ltd at [64]-[69] and Commissioner Roe in Tebble v Rizmas Pty Ltd at [6], but respectfully disagree with the obiter remarks by Commissioner Cambridge in Kefer v Tattersall’s Holdings Pty Ltd at [41]-[44].
[Footnotes omitted; Emphasis added]
The determination of whether the Applicant served the minimum employment period of 12 months involves consideration of the work that resulted in the FY22 Payments, and there are two bases upon which it may be put that that work is not counted as continuous service. They are:
(a) That the work that resulted in the FY22 Payments was performed as a Contractor, and not an employee; or
(b) That the work that resulted in the FY22 Payments was last performed on or about 24 April 2022, and there was a gap in service before the commencement of the Employment Agreement on 1 July 2022.
The Respondent confirmed in the Hearing that the basis of their objection was the first, and not the second, of the above outlined objections.[4]
The period of service that resulted in the FY22 Payments was not service, in particular continuous service, as an employee. Firstly it was, as agreed, ad hoc, and the irregularity of the FY22 Payments highlights an irregularity of work. Secondly, the usual documents provided at the commencement of employment (the Tax File Number Declaration Form, Superannuation Standard Choice Form, and the Fair Work Information Statement) were not provided until 1 July 2022 when the Employment Agreement commenced. Finally, the absence of taxation deductions was indicative of a contractor relationship.
While not pressed by the Respondent, I also consider that there was a gap in service, in whatever form (employee or contractor), from around 24 April 2022 to 1 July 2022. While the Applicant was careful to assert continuous employment so as to obtain jurisdiction,[5] I note that he accepted that the FY22 Payments would have been made after work had been performed for the Respondent.[6] Upon that concession, it is clear that no compensable work was performed for over two months from 24 April to 1 July 2022.
The date of dismissal was agreed to be 27 June 2023, the Respondent having availed itself of the ability to terminate the Employment Agreement in lieu of notice pursuant to Clause 14.1 of that Employment Agreement. Accordingly, the employment period was approximately three days less that the minimum required.
Having not completed a period of employment with his employer of at least the minimum employment period, the Applicant is not a person protected from unfair dismissal, and the Respondent’s jurisdictional objection regarding minimum employment period is upheld. For completeness, I will also consider the jurisdictional objection regarding genuine redundancy.
(b) Genuine Redundancy
Section 385 of the Act provides as follows:
385 What is an unfair dismissal
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
(d) the dismissal was not a case of genuine redundancy.
[Emphasis added]
One effect of s.396 is that if a dismissal is the result of a genuine redundancy as put by
the Respondent, the Commission does not need to determine whether the dismissal was harsh,
unjust or unreasonable.
Section 389 of the Act, titled “Meaning of Genuine Redundancy” provides:
(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.
(i) Job no Longer Required
In Jones v Dept of Energy and Minerals,[7] Ryan J stated when describing how a redundancy may take place:
“However, it is within the employer's prerogative to rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly-created positions. It is inappropriate now to attempt an exhaustive description of the methods by which a reorganisation of that kind may be achieved. One illustration of it occurs when the duties of a single, full-time, employee are redistributed to several part-time employees. What is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the re-organization, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position becomes redundant in the sense in which the word was used in the Adelaide Milk Co-operative case.”
I accept the evidence of Mr Singh that the Respondent has suffered significant reductions in revenue arising from changes to its one product, s.188 Visas, resulting in the need to terminate the Applicant and Mr Chauhan. I note there was no challenge of any substance to that evidence.
(ii) Complied with Consultation Obligation
It is necessary, in order to determine whether consultation obligations apply, to determine whether a modern award or enterprise agreement applied to the employment, and if so, what consultation obligations it contained.
While in the Form F3 Employers Response, the Respondent referred to “Clerks Private Sector Award MA000002 – Annualised Salary” as the title of the Award that applied to the employment, that submission was abandoned in the Hearing. The Applicant did not submit that any modern award or enterprise agreement applied to the employment.
Clauses 4.1 and 4.3, Coverage, of the Clerks—Private Sector Award 2020, provides:
4.1 This occupational award covers:
(a) private sector employers throughout Australia in relation to employees wholly or principally engaged in clerical work; and
(b) private sector employees who are wholly or principally engaged in clerical work and who are employed by employers mentioned in clause 4.1(a).
…
4.3 However, this occupational award does not cover any of the following:
(a) employers covered by a modern award that contains clerical classifications; or
(b) employees excluded from award coverage by the Act; or
NOTE: See section 143(7) of the Act.
(c) employees covered by a modern enterprise award or an enterprise instrument; or
(d) employees covered by a State reference public sector modern award or a State reference public sector transitional award; or
(e) employers in relation to employees mentioned in clauses 4.3(c) or 4.3(d).
[Emphasis added]
S.143(7) of the Act, titled “Employees not traditionally covered by awards etc.” provides:
(7) A modern award must not be expressed to cover classes of employees:
(a) who, because of the nature or seniority of their role, have traditionally not been covered by awards (whether made under laws of the Commonwealth or the States); or
(b) who perform work that is not of a similar nature to work that has traditionally been regulated by such awards.
Note: For example, in some industries, managerial employees have traditionally not been covered by awards.
While the evidence before me on the issue of award coverage is minimal, I can find that the Applicant was not covered by the only apparently relevant award, being the Clerks—Private Sector Award 2020. Not only was the Applicant not wholly or principally engaged in clerical work, but in his position as Director or Operations Manager, and on his salary of $120.000.00 per annum, his role is not of a similar nature to work that has traditionally been regulated by such awards.
(iii) Redeployment
I do not consider that it would have been reasonable in the circumstances to re-deploy the Applicant. The Respondent was a very small business with significant revenue disruption.
(iv) Conclusion Regarding Redundancy
The Respondent no longer required the Applicant’s job to be done by anyone because of changes in the operational requirements of the employer’s enterprise, no consultation obligations arose under a modern award or enterprise agreement that applied to the employee, and it was not reasonable in all the circumstances for the Applicant to be redeployed in the Respondent’s enterprise.
Conclusion
For the reasons set out above, I am satisfied that;
(a) The Applicant was not employed by the Respondent for at least the minimum employment period at the time of his dismissal on 27 June 2023; and
(b) The dismissal was a case of genuine redundancy.
It follows that the Applicant is not a person who was protected from unfair dismissal at the time of his dismissal. The Application is therefore dismissed.
DEPUTY PRESIDENT
Appearances:
Mr Joshua Samuel Wilson, the Applicant.
Mr Matthew Twyford (Twyford Law), Solicitor for the Respondent.
Hearing details:
In-person.
13 October 2023.
Sydney.
[1] Transcript PN 351.
[2] Transcript PN 537.
[3] [2017] FWC 1204, at [8] and [9].
[4] Transcript PN 620 to 640.
[5] Transcript 304 to 316.
[6] Transcript PN 311.
[7] (1995) 60 IR 304.
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