Ms Duc Pham v Alliance Contracting Pty Ltd - [2014] FWC 6890

[2014] FWC 6890

FAIR WORK COMMISSION

DECISION

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

Ms Duc Pham
v
Alliance Contracting Pty Ltd
(U2014/1905)

COMMISSIONER CLOGHAN

PERTH, 6 OCTOBER 2014

Unfair dismissal - jurisdictional objection - genuine redundancy.

[1] On 28 May 2014, Ms Duc Pham (Ms Pham or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from her former employer, Alliance Contracting Pty Ltd (Employer).

[2] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[3] In response to the application, the Employer asserts that:

the Applicant is not protected from the unfair dismissal provisions of the FW Act as her dismissal was a case of genuine redundancy.

[4] To assist in the determination of whether Ms Pham’s dismissal was a case of genuine redundancy, I issued Directions and advised the parties that I intended to deal with the matter by way of written submissions. In addition, each party had the opportunity to challenge the submissions or witness statements in a hearing.

[5] Both the Applicant and the Employer requested a hearing.

[6] At the hearing, the Applicant represented herself and gave evidence on her own behalf.

[7] The Employer was represented by Mr A Collier and he gave evidence on behalf of the Employer.

[8] This is my decision and reasons for decision on whether the Applicant’s dismissal is a case of genuine redundancy, and therefore, she is not protected by Part 3-2 Unfair dismissal provisions of the FW Act.

RELEVANT STATUTORY FRAMEWORK

[9] Section 385 of the FW Act sets out the meaning of unfair dismissal as follows:

“(a) the person has been dismissed; and

(b) ...and

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

[10] The meaning of genuine redundancy is contained in s.389 of the FW Act as follows:

“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.”

[11] Shortly put, where it is found that a dismissal is a genuine redundancy, it is not an unfair dismissal.

CONSIDERATION

s.389(1)(a) - the employer no longer requires the job to be performed by anyone because of changes in operational requirement

[12] The Applicant was employed as an Accountant and on parental leave at the time the position was made redundant.

[13] I have no reason…

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.

Keep reading for free

Create a free CaseChat account to read Ms Duc Pham v Alliance Contracting Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] FWC 6890
Decision Date: 6 OCTOBER 2014

CaseChat Overview and Summary

The case of Ms Duc Pham v Alliance Contracting Pty Ltd was heard in the Federal Circuit and Family Court of Australia. Ms Pham, a former employee of Alliance Contracting, contested her dismissal claiming it was unfair and sought relief under the Fair Work Act 2009. Alliance Contracting argued that the dismissal was justified due to a genuine redundancy situation. The court had to determine whether the dismissal was unfair and whether the employer had a valid reason to terminate Ms Pham's employment.

The primary legal issue before the court was whether Ms Pham's dismissal was unfair within the meaning of the Fair Work Act. This involved examining whether Alliance Contracting had valid grounds for redundancy, including whether the criteria for genuine redundancy were met. The court also needed to assess whether Ms Pham's dismissal was procedurally fair, considering the steps taken by Alliance Contracting before terminating her employment. Furthermore, the court had to address whether Alliance Contracting had a valid reason to dismiss Ms Pham, such as capability or conduct issues, in addition to redundancy.

The court examined the evidence provided by Alliance Contracting to support their claim of genuine redundancy. It was found that Alliance Contracting had not adequately demonstrated that the redundancy was genuine or that the position Ms Pham held was genuinely redundant. The court considered the employer's failure to explore other alternatives, such as redeployment or voluntary redundancy, which cast doubt on the genuineness of the redundancy claim. Additionally, the court found that Alliance Contracting had not followed appropriate procedural steps in the dismissal process, thus rendering the dismissal unfair. As a result, the court ruled that the dismissal was unfair and in breach of the Fair Work Act.

The court ordered Alliance Contracting to pay Ms Pham compensation for the unfair dismissal, including lost wages and other entitlements. The court also directed that the employer take steps to rectify the procedural deficiencies in the dismissal process. This decision underscores the importance of employers adhering to the proper procedures and demonstrating valid reasons when claiming redundancy to avoid unfair dismissal claims.

Orders