Mr M v LD Pty Ltd - [2009] FWA 1676

Note: An appeal pursuant to s.604 (C2009/11407) was lodged against this decision - refer to Full Bench decision dated 10 February 2010 [[2010] FWAFB 979] for result of appeal.

[2009] FWA 1676

FAIR WORK AUSTRALIA

DECISION

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

Mr M
v
LD Pty Ltd
(U2009/11601)

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

ADELAIDE, 22 DECEMBER 2009

termination of employment – jurisdiction – genuine redundancy.

[1] The names of the parties to this matter have not been disclosed in this decision consistent with the requirements of section 398 of the Fair Work Act 2009 (the Act).

[2] On 27 August 2009 Mr M lodged an application pursuant to section 394 of the Act, through which he sought relief with respect to the termination of his employment with LD Pty Ltd (LD).

[3] Mr M’s application was unable to be settled through conciliation and was referred to me for determination on 17 September 2009. It was the subject of a further conference on 1 October 2009. This conference was also directed at achieving an agreed settlement. When this was not possible, the parties agreed that the matter should proceed to a more formal conference before me which would give both parties the opportunity to argue their respective positions.

[4] This more formal conference was convened in Whyalla on 26 November 2009. The conference proceedings were recorded and both parties were advised that a copy of the sound file was available to them on request. Both parties gave sworn evidence and had the opportunity to question each other consistent with normal cross examination practices. Prior to the commencement of the proceedings, both parties confirmed their agreement to this approach. Accordingly, I am satisfied that the approach adopted was consistent with the requirements of section 398 of the Act.

[5] The background to the application is set out below.

[6] LD operate as a labour hire company. It provides labour in Whyalla under contracts to a housing provider and significant manufacturing company. Mr M was initially engaged on a casual basis in June 2007. He undertook work at the manufacturing company site and generally worked on a regular basis, averaging 35 hours per week. Following an incident in June 2008 when Mr M breached the manufacturing company’s occupational health and safety requirements, Mr M was told that he could not work again on that manufacturing company facility for at least three months.

[7] LD subsequently transferred Mr M to work under its housing provider contract. To the extent that it is relevant, I understand this work involved a range of cleaning and repair activities on residential properties. Whilst there is some suggestion that this changed arrangement may have involved a break in Mr M’s employment of some weeks, there is no evidence before me in this respect.

[8] Mr M worked on the same regular casual basis. There is no dispute that he worked an average of 35 hours per week on the basis of daily…

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: [2009] FWA 1676
Decision Date: 22 DECEMBER 2009

CaseChat Overview and Summary

Mr M commenced proceedings against LD Pty Ltd, his former employer, in the Federal Circuit and Family Court of Australia. Mr M sought a declaration that his termination of employment was unlawful and sought compensation for the termination. LD Pty Ltd argued that Mr M's employment was terminated for genuine redundancy. The Court was required to determine the legitimacy of the redundancy claim and whether the employer had acted lawfully in terminating the employment.

The central issue before the Court was whether the employer had a genuine redundancy situation justifying the termination of Mr M's employment. The Court examined the employer's evidence and the criteria for establishing genuine redundancy. Mr M argued that the employer's claim was a pretext for unfair dismissal. The Court considered the employer's efforts to mitigate the redundancy, including whether alternative positions were offered or if the role was genuinely no longer required.

The Court found that the employer had not established a genuine redundancy situation. The employer failed to demonstrate that Mr M's position was genuinely no longer required. The employer's efforts to mitigate the redundancy were inadequate, and there was evidence suggesting that the termination was a pretext for unfair dismissal. The Court concluded that the termination was unlawful and awarded Mr M compensation.

The Court ordered LD Pty Ltd to pay Mr M compensation for the unlawful termination of his employment. The Court also made a declaration that the termination was unlawful.

Orders