Mr Muhammad Buttar v PFD Food Services Pty Ltd T/A PFD Food Services - [2017] FWC 4918

[2017] FWC 4918

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Muhammad Buttar

PFD Food Services Pty Ltd T/A PFD Food Services

(U2017/6700)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 21 SEPTEMBER 2017

Dismissal harsh, unjust or unreasonable – remedy not agreed through conciliation – decision on remedy – genuine redundancy but failure to redeploy - reinstatement to another position not inappropriate – orders made

By decision of 24 August 2017[1] the Fair Work Commission (the Commission) found that Muhammad Buttar’s dismissal on 2 June 2017 by PFD Food Services Pty Ltd (PFD) was harsh, unjust or unreasonable. In doing so, I dismissed the employer’s threshold claim that Mr Buttar’s dismissal was a genuine redundancy within the meaning of the Fair Work Act 2009 (FW Act).

The matter had proceeded directly to arbitration at the employer’s request for its claim of genuine redundancy to be dealt with as a threshold issue. I decided both the threshold issue and the merits. On remedy, I said as follows:

[81] In these circumstances, I consider it appropriate to defer making a decision on remedy in order to enable the parties to consider, in light of this decision, whether they wish to avail themselves of a conciliation process that could lead to a settlement on the question of remedy. The Commission will make available to the parties, if they so choose, a further process of member-assisted conciliation conducted by a member of the Commission other than myself. Should that process not be undertaken or not successful, I will make a decision on remedy and issue appropriate orders.[2]

At a Directions Hearing on 28 August, Mr Buttar and PFD indicated a willingness to participate in Member Assisted Conciliation on the question of remedy. Member Assisted Conciliation was conducted on 1 September 2017 by Commissioner Platt. Conciliation did not resolve the matter. I now determine the question of remedy.

I took evidence at the primary hearing on all issues in dispute, including remedy. Following the conciliation on remedy, I provided the parties a further opportunity to make submissions on remedy.[3] Each did so.[4]

In arriving at this decision I take into account all of the evidence and submissions that were before me at the primary hearing, and the further written submissions on remedy. I adopt the findings and conclusions of my primary decision of 24 August as terms of this decision, without repeating them.

I found there was a valid reason for Mr Buttar’s dismissal on the ground of redundancy.[5] However, I concluded that the redundancy was not a genuine redundancy within the meaning of the FW Act on two grounds: firstly, that PFD had failed to comply with its legal obligation to consult about the redundancy[6]; and secondly, that it failed to fulfil its legal obligation to redeploy Mr Buttar in the employer’s enterprise given that it would have been reasonable in all the circumstances to have done so.[7]

Overall, I found these failures sufficiently serious to conclude that…

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 Muhammad Buttar v PFD Food Services Pty Ltd T/A PFD Food Services [2017] FWC 4918
Case: [2017] FWC 4918
Decision Date: 21 SEPTEMBER 2017

CaseChat Overview and Summary

In the matter of Mr Muhammad Buttar against PFD Food Services Pty Ltd trading as PFD Food Services, the Federal Circuit and Family Court of Australia was called upon to adjudicate a dispute over the termination of Mr Buttar's employment. Mr Buttar alleged that his dismissal was harsh, unjust, or unreasonable, and that he was not redeployed to another position despite the employer's genuine redundancy claims. The dispute reached the court after the parties were unable to reach an agreement through conciliation under the Fair Work Act 2009.

The court had to determine whether the employer had a genuine redundancy reason for terminating Mr Buttar's employment and whether the employer failed to take reasonable steps to redeploy him to a suitable alternative position. The central issue was whether the employer's decision to terminate Mr Buttar's employment was unjust or unreasonable given the employer's failure to offer him a different position, despite acknowledging his skills and experience.

The court found that while the employer did have a genuine redundancy reason for the dismissal, the failure to redeploy Mr Buttar to another position was unreasonable. The employer had acknowledged Mr Buttar's skills and experience, and there were positions available to which he could have been reassigned. The court concluded that the employer's failure to redeploy Mr Buttar was a significant factor in finding the dismissal unjust. The court also considered that reinstatement to another position would not be inappropriate given the circumstances of the case. Ultimately, the court ordered the employer to compensate Mr Buttar and to reinstate him to another position if suitable, subject to the availability of such a position.

Orders