DECISION

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

Mr Muhammad Buttar
v
PFD Food Services Pty Ltd T/A PFD Food Services
(U2017/6700)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 24 AUGUST 2017

Application for an unfair dismissal remedy - jurisdictional objection raised – failure to consult – failure to reasonably consider redeployment - not genuine redundancy – dismissal harsh, unjust or unreasonable despite valid reason – conciliation on question of remedy

Background

[1] Mr Muhammad Buttar has applied to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to his dismissal by PFD Food Services Pty Ltd (PFD). He was made redundant on 2 June 2017.

[2] PFD is a national food processing and distribution company. Seafood processing and distribution is a significant but not exclusive part of its business. It operates a seafood processing site in suburban Torrensville known as the Adelaide Fish Room.

[3] Mr Buttar was born and educated in Pakistan. He holds tertiary qualifications from Pakistan in finance and in computing. They are not mutually recognised in Australia. He has a technical Australian qualification to drive fork lifts. He migrated to Australia in about 2014. He is 32 years of age. He commenced working for PFD in the Adelaide Fish Room as a filleter/general hand in February 2015. He worked continuously with PFD for 2 years 4 months.

[4] Mr Buttar was a well-regarded and conscientious employee. He was promoted to Production Supervisor in the Adelaide Fish Room in September 2015. On 7 April he entered a new employment contract with PFD when PFD decided to employ Production Supervisors on an all-up salary. Aside from an increase in pay, his work responsibilities and employment conditions remained unchanged. Relevantly, at all times, including after the change in remuneration structure, he remained employed under the terms of a modern award, the Seafood Processing Award 2010.

[5] At the time of his termination he was one of two Production Supervisors in the Adelaide Fish Room. He generally worked afternoon shift, the other Production Supervisor (Jim Galios) the day shift. He reported directly to Production Manager David Harker, who in turn reported to the National Seafood Operations Manager Winston Chiu.

[6] As Production Supervisor Mr Buttar oversaw the work of production staff (general hands, filliters and packers), processed orders, managed stock flows and inventories, dealt with sales staff, checked weights, measures and freezer temperatures and locked the factory at close. He used his computer skills to manage and record data, and used his production and forklift driving skills to support production and operations where needed.

[7] Mr Buttar’s application was lodged within the statutorily required 21 days after his dismissal took effect.

[8] Mr Buttar seeks a finding that his dismissal was unfair within the meaning of the FW Act, and an order for reinstatement accompanied by ancillary orders for the payment of back pay and recognition…

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 4409
Case: [2017] FWC 4409
Decision Date: 24 AUGUST 2017

CaseChat Overview and Summary

The case of Mr Muhammad Buttar v PFD Food Services Pty Ltd T/A PFD Food Services dealt with an application for unfair dismissal remedy. Mr Buttar, the applicant, alleged that his dismissal was unfair. The respondent, PFD Food Services, contested the claim. The dispute was heard in the Fair Work Commission. The central issues in the case revolved around whether Mr Buttar's dismissal was harsh, unjust or unreasonable, despite being valid. This included questions about whether the employer had failed to consult with the employee, failed to reasonably consider redeployment, and whether the dismissal was not a genuine redundancy. Additionally, the court examined the conciliation process concerning the remedy.

The court analysed the employer's conduct regarding the dismissal, focusing on whether there was a valid reason related to the employee's capacity or conduct, and if the employer had followed a just process. The court found that while the employer had a valid reason for dismissal, there were significant procedural flaws. The employer did not adequately consult with Mr Buttar, nor did they reasonably consider redeployment options. Furthermore, the court held that the dismissal was not a genuine redundancy as the respondent had not conclusively demonstrated the business closure or restructuring that would justify the redundancy.

Consequently, the court ruled that Mr Buttar's dismissal was harsh, unjust or unreasonable. The decision highlighted the importance of procedural fairness in dismissal processes, underscoring that valid reasons alone are insufficient if the process is not properly followed. The court ordered that the matter proceed to conciliation to determine the appropriate remedy. This included the possibility of reinstatement, compensation, or other fair remedies, depending on the outcome of the conciliation process.

Orders