Mr Matthew Macdonald v Central Coast Commercial Properties & Projects Pty Ltd T/A the Willows Motor Inn - [2010] FWA 6626

[2010] FWA 6626

FAIR WORK AUSTRALIA

DECISION

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

Mr Matthew Macdonald
v
Central Coast Commercial Properties & Projects Pty Ltd T/A The Willows Motor Inn
(U2010/8521)

COMMISSIONER CAMBRIDGE

SYDNEY, 27 AUGUST 2010

Unfair dismissal - alleged genuine redundancy - challenge as to whether employer had complied with obligations of Modern Award - ss. 385, 389, and 396 of Fair Work Act - practical and reasonable determination of time to invoke consultation - Award obligations met - genuine redundancy established - claim dismissed.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009, (the Act). The application was lodged at Sydney on 3 May 2010. The application was made by Matthew Edward Macdonald, (the applicant) and named the respondent employer as Central Coast Commercial Properties and Projects Pty Ltd, (the employer).

[2] The application indicated that the date of the applicant’s dismissal was 27 April 2010. Consequently the application was made within the 14 day time limit prescribed by subsection 394 (2) of the Act. Conciliation of the claim was unsuccessful and the matter proceeded to arbitration before Fair Work Australia (FWA) in a Hearing conducted in Sydney on 2 August 2010.

[3] At the Hearing the applicant was represented by Mr Anton Duc from “Blue Mountains Employment Relations”. The applicant was the only witness called to provide evidence in support of the claim. The employer was in effect, unrepresented as Ms Leanne Sutherland a contract bookkeeper, presented the employer’s case and gave evidence as the only witness called in response to the applicant’s claim.

Factual Background

[4] The applicant had worked for the employer for approximately 1 year and 8 months. The applicant worked as a qualified Chef. The applicant worked at the employer’s motel business which traded as Quality Inn - The Willows, located at 512 Pacific Highway, Wyoming, New South Wales (the Willows). The employer has approximately 12 full-time equivalent employees.

[5] The applicant commenced a period of annual leave on 3 April 2010 and he was due to return to work on 27 April 2010. During this period of leave the applicant and his wife undertook an ocean cruise together with Paul and Sharon Redfern who were the Managers of the Willows. While at sea on the cruise Sharon Redfern told the applicant that the Willows had been sold.

[6] On 17 April the applicant (and the others) returned from the ocean cruise. Although he was not due to return to work at the Willows until 27 April, on the 17th the applicant went to the motel premises to help the Managers (Paul and Sharon Redfern) “move out”. At this time the applicant was informed by representatives of the employer that the Willows had been sold and that the new owners would like to meet with him to discuss potential employment. A meeting was arranged for Tuesday 20 April.

[7] At around this…

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

AGLC: Mr Matthew Macdonald v Central Coast Commercial Properties and Projects Pty Ltd T/A the Willows Motor Inn [2010] FWA 6626
Case: [2010] FWA 6626
Decision Date: 27 AUGUST 2010

CaseChat Overview and Summary

The case before the Fair Work Commission involved Mr Matthew Macdonald, who brought a claim against Central Coast Commercial Properties & Projects Pty Ltd, trading as the Willows Motor Inn, alleging unfair dismissal under the Fair Work Act. The crux of the dispute was whether Mr Macdonald's dismissal was justified, with the employer asserting that it was a genuine redundancy. Mr Macdonald contested the dismissal, arguing that the employer had not adhered to the necessary obligations under the relevant Modern Award, specifically sections 385, 389, and 396 of the Fair Work Act. The Commission had to determine whether the employer had fulfilled its duty to consult and whether the dismissal was indeed a genuine redundancy.

The primary legal issues before the Commission were whether the employer had complied with the Award obligations, particularly the requirement to consult with employees before making a decision to dismiss for redundancy, and whether the dismissal was a genuine redundancy. Mr Macdonald argued that the employer failed to provide sufficient information and consultation time, rendering the dismissal unfair. The employer, on the other hand, contended that the consultation process was adequate and that the dismissal was justified due to genuine redundancy.

In reaching its decision, the Commission examined the evidence and submissions from both parties. It found that the employer had indeed fulfilled its obligation to consult with Mr Macdonald. The employer provided information about the redundancy, including the criteria for selection and the process for determining who would be dismissed. The Commission considered the practical and reasonable determination of the consultation period, concluding that the employer had met its obligations. Furthermore, the Commission determined that the dismissal was a genuine redundancy, as the employer had demonstrated a genuine need for the position to be abolished. As a result, the claim was dismissed, with the Commission finding that the employer had complied with all necessary legal requirements and that the dismissal was justified.

Orders