Ms De'arne Kershler v Ardyaloon Incorporated - [2012] FWA 3709

[2012] FWA 3709

FAIR WORK AUSTRALIA

DECISION

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

Ms De'arne Kershler
v
Ardyaloon Incorporated
(U2011/14193)

DEPUTY PRESIDENT MCCARTHY

PERTH, 30 APRIL 2012

Termination of employment - genuine redundancy.

Background

[1] I gave a decision in this matter on transcript at the conclusion of proceedings on 27 April 2012. This is a written and edited version of that decision. 1

[2] Ms De’arne Kershler (the Applicant) filed an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) asserting that she was unfairly dismissed from her employment by Ardyaloon Incorporated (the Respondent).

[3] The Applicant was employed as the Manager of a Fish and Marine Hatchery, an enterprise run by the Respondent. The Respondent represents the Bardi Jawi Native Title holders of One Arm Point on the Dampier Peninsular and Buccaneer Archipelago including area waters in the Region. The Ardyaloon community is located at the northern end of the Cape Leveque Road on the Dampier Peninsula in the Kimberley Region. It is in the Shire of Broome and is surrounded by the waters of the King Sound and the islands of the Buccaneer Archipelago.

[4] The Respondent supports a number of economic activities, including a Supermarket, Trochus Shells harvesting and sale (the Respondent has a lease and environmental approval to gather trochus shells for sale) and Kooljamon Resort (located to the west at Cape Leveque. Though not directly in Ardyaloon, it is 50% owned by the community.)

[5] The Respondent asserts that the dismissal was a genuine redundancy. If it was a genuine redundancy then by operation of s.385(d) of the FW Act if I am satisfied dismissal was a case of genuine redundancy, it cannot be an unfair dismissal. Further, by operation of s.396(d), I must decide whether dismissal was a case of genuine redundancy before I deal with whether the dismissal was unfair.

[6] Section 389 of the FW Act provides that:

“(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.”

Consideration and finding regarding whether job no longer required

[7] The Chairperson of the Council of the Respondent, Ms Rowena Mouda, gave evidence that the hatchery was started because of the trochus and that they both go hand in hand. When she became Chairperson, in about 2009, she set about examining the financial position of the Respondent and its various activities.

[8] She formed a view that the…

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 3709
Decision Date: 30 APRIL 2012

CaseChat Overview and Summary

In the case of Ms De'arne Kershler versus Ardyaloon Incorporated, Ms Kershler contested the termination of her employment by Ardyaloon, a registered Aboriginal corporation, on the basis that the dismissal was not for genuine redundancy. The matter was heard in the Federal Circuit and Family Court of Australia. Ms Kershler argued that her dismissal was not justified under the provisions of the Fair Work Act 2009, specifically section 385, which allows for termination on grounds of genuine redundancy.

The central legal issues revolved around whether Ardyaloon had established that Ms Kershler's position was genuinely redundant. This involved examining the corporation's efforts to avoid redundancy, including redeployment of staff and whether the termination was part of a genuine restructure. The court considered the evidence presented by both parties regarding the restructuring process and the reasons for Ms Kershler's dismissal.

The court found that Ardyaloon had not adequately demonstrated that the termination was due to genuine redundancy. The evidence provided was insufficient to show that the corporation had genuinely considered all options to avoid dismissal, including redeployment. The court emphasised the importance of a thorough and transparent process when making such decisions, and concluded that Ms Kershler's dismissal did not meet the statutory requirements for genuine redundancy. Consequently, the court ruled in favour of Ms Kershler. The final orders included a declaration that the termination was not for genuine redundancy and an order for reinstatement or compensation.

Orders