Mr Raymond Schroder v Identity One - [2012] FWA 9490

[2012] FWA 9490

FAIR WORK AUSTRALIA

DECISION

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

Mr Raymond Schroder
v
Identity One
(U2012/993)

COMMISSIONER ASBURY

BRISBANE, 6 NOVEMBER 2012

Application for unfair dismissal remedy - small business employer - genuine redundancy.

Background

[1] This decision relates to an application for an unfair dismissal remedy by Mr Raymond Schroder under s.394 of the Fair Work Act 2009 (the Act). Mr Schroder was employed by Identity One Pty Ltd from 4 April 2011, as a Biometric Solutions Specialist. Mr Schroder was dismissed on 18 April 2012. Mr Schroder asserts that the dismissal was unfair because he was not given any reason for the dismissal and it was procedurally and substantively unfair. Identity One Pty Ltd asserts it is a small business employer and that Mr Schroeder’s dismissal was not an unfair dismissal on the basis that it was a case of genuine redundancy.

Legislation

[2] By virtue of s.385 of the Act a person has been unfairly dismissed if:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(d) the dismissal was not a case of genuine redundancy.

[3] Section 396 of the Act requires that the following matters are decided before considering the merits of an application under s.394:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(d) whether the dismissal was a case of genuine redundancy.

[4] It is not in dispute that Mr Schroder made his application for an unfair dismissal remedy within the period requird in subsection 394(2) and that Mr Schroder is a person protected from unfair dismissal. The Small Business Fair Dismissal Code does not apply to dismissals in circumstances of redundancy. 1 The term “genuine redundancy” is defined in s.389 of the Act in the following terms:

“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.”

[5] In relation to s.389 of the Act, the Explanatory Memorandum states:

“1547. Paragraph 389(1)(a) provides that a person’s dismissal will be a case of genuine redundancy if his or her job was no longer required to be performed by anyone because of changes in the operational…

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: [2012] FWA 9490
Decision Date: 6 NOVEMBER 2012

CaseChat Overview and Summary

The applicant, Mr Raymond Schroder, sought relief in the Fair Work Commission against his former employer, Identity One, on the basis that his dismissal was unfair. Mr Schroder alleged that he was dismissed without just cause or excuse, contrary to section 384 of the Fair Work Act 2009. Identity One, a small business, claimed that Mr Schroder's termination was justified on the grounds of genuine redundancy, as it was required to restructure its operations due to financial difficulties.

The primary legal issue before the Commission was whether Identity One had established that Mr Schroder's dismissal was a genuine redundancy, as per the criteria set out in section 384(2) of the Fair Work Act. The Commission needed to assess whether the employer had genuinely undertaken a process of consultation and made a genuine effort to find alternative employment for Mr Schroder before his dismissal. Additionally, the Commission had to consider whether the employer's decision to terminate Mr Schroder's employment was reasonable in the circumstances.

The Commission found that Identity One had demonstrated that it had undertaken a genuine process of consultation and made reasonable efforts to find alternative employment for Mr Schroder. It was established that the employer had faced significant financial difficulties, necessitating a reduction in workforce to ensure the business's survival. The Commission also determined that the employer's decision to terminate Mr Schroder's employment was reasonable in the context of the business's financial constraints and the need to reduce costs. Consequently, the Commission dismissed Mr Schroder's application for unfair dismissal remedy.

No further orders were made by the Commission beyond the dismissal of the application.

Orders