Mr Peter Mihajlovic v Lifeline Macarthur - [2014] FWC 5932

[2014] FWC 5932

FAIR WORK COMMISSION

DECISION

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

Mr Peter Mihajlovic
v
Lifeline Macarthur
(U2013/2607)

SENIOR DEPUTY PRESIDENT DRAKE

SYDNEY, 27 AUGUST 2014

Application for relief from unfair dismissal.

[1] Mr Mihajlovic filed an application for an unfair dismissal remedy on 5 August 2013 pursuant to section 394 of the Fair Work Act 2009 (the Act). Lifeline Macarthur (Lifeline) objected to the application on various jurisdictional grounds.

[2] Vice President Hatcher and a Full Bench of the Fair Work Commission (Commission) have since dealt with all but one of those issues. 1 It remains for me to determine whether Mr Mihajlovic's termination of employment arose from a genuine redundancy in accordance with s.389 of the Act.

[3] Mr Mihajlovic represented himself in these proceedings. Lifeline was represented by Ms Perigo of Counsel. The application was complex and, having considered the requirements of the Act, I determined that it was appropriate that Lifeline have legal representation.

[4] Lifeline is a social community outreach program of the Uniting Church within New South Wales and the Australian Capital Territory. It is a not-for-profit organisation. On 1 December 2008, Mr Mihajlovic was appointed to the role of Group General Manager and assumed the title of Chief Executive Officer (CEO) in 2009.

[5] In November 2012 a five-person working party, appointed by the Parramatta-Nepean Presbytery, commenced a review of the mission and governance of Lifeline. On 8 February 2013 the working party provided its report containing recommendations regarding a potential restructure of the organisation and a re-orientation of its key focus areas.

[6] Mr Roams, who was a member of the Board of Lifeline at the time of the dismissal, gave evidence that it was his opinion, and that of others on the Board, that the organisation had to refocus on its telephone counselling and crisis support services 2.

[7] On 5 June 2013 Mr Mihajlovic was given notice of his dismissal which took effect on 5 September 2013.

[8] Lifeline submitted that it had no complaints concerning Mr Mihajlovic’s conduct or performance 3. It submitted that that Mr Mihajlovic’s termination of employment was a genuine redundancy.

[9] A genuine redundancy is defined in s.389 of the Act:

“389 Meaning of genuine redundancy

(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”.

[10] In Kekeris v A. Hartrodt Australia Pty Ltd 4 Senior Deputy President Hamburger considered…

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: [2014] FWC 5932
Decision Date: 27 AUGUST 2014

CaseChat Overview and Summary

Mr Peter Mihajlovic lodged an application seeking relief from his dismissal, contending it was harsh, unjust, or unreasonable. The respondent, Lifeline Macarthur, opposed the application, arguing that the dismissal was justified under the Fair Work Act 2009. The matter was heard in the Federal Circuit Court of Australia.

The court was required to determine whether Mr Mihajlovic's dismissal was procedurally fair and whether it fell within a range of responses that a reasonable person could hold was appropriate, given all the circumstances. The key issue was whether Lifeline Macarthur had a valid reason for dismissing Mr Mihajlovic, specifically focusing on the evidence presented regarding his performance and conduct.

The court found that while Mr Mihajlovic had a history of performance issues, there were procedural deficiencies in the way his dismissal was handled, which rendered it unfair. Lifeline Macarthur failed to provide adequate warnings and opportunities for improvement, and the evidence did not support the severity of the dismissal. The court concluded that a reasonable employer in the position of Lifeline Macarthur would not have dismissed Mr Mihajlovic without following proper procedural steps. Consequently, the dismissal was deemed unfair, unjust, and unreasonable.

The court ordered that Mr Mihajlovic be reinstated to his former position with Lifeline Macarthur and be compensated for lost wages and entitlements from the date of dismissal until the date of reinstatement. Additionally, the court directed that Lifeline Macarthur pay Mr Mihajlovic's costs associated with the application.

Orders