Ms Felicity Klavs v Prestige Painters - [2013] FWC 2485

[2013] FWC 2485

FAIR WORK COMMISSION

DECISION

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

Ms Felicity Klavs
v
Prestige Painters
(U2012/14250)

COMMISSIONER SIMPSON

BRISBANE, 24 MAY 2013

Termination of employment - genuine redundancy - s.394 application dismissed.

[1] This matter concerns an application under s 394 of the Fair Work Act 2009 (“the Act”) by Ms Klavs (“the Applicant”) who alleges that the termination of her employment as a painter with Prestige Painting Services Cairns Pty Ltd (“the Respondent”) was unfair in accordance with the definition contained within s 385 of the Act.

[2] The application was filed on the 17 October 2012 and a conciliation conference was conducted on 12 November 2012 which was not successful in resolving the matter. The matter was allocated to me and listed for Directions 5 March 2013. A further conciliation conference was listed for 8 April 2013 which again was unsuccessful. I issued a decision on 22 April 2013 dismissing an application by the Respondent under section 587. 1

[3] The matter was then listed for hearing on 24 April 2013 in Cairns. The Applicant represented herself and the Respondent was represented by Mr Dean Cameron of the Queensland Master Builders Association Industrial Union of Employers (QMBA). The central issue in the case is whether the Applicant’s termination was a genuine redundancy or whether her dismissal was not a redundancy and was because she made a complaint to the Fair Work Building and Construction (“FWBC”) in connection with living away from home allowances under the Building and Construction General On-site Award 2010 (“the Award”). The Applicant was clear in that she sought a remedy of reinstatement. 2

CONSIDERATION

[4] Section 385 says as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

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

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

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

[5] Section 396 says as follows:

“396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

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

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

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy..” (my emphasis added)

[6] As is made clear from the above provisions of the Act I must determine whether the termination of the Applicant was a genuine redundancy before considering the merits.

[7] Section 389 provides 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…

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.

Continue reading Ms Felicity Klavs v Prestige Painters

Details

AGLC: Ms Felicity Klavs v Prestige Painters [2013] FWC 2485
Case: [2013] FWC 2485
Decision Date: 24 MAY 2013

CaseChat Overview and Summary

Ms Felicity Klavs, an employee of Prestige Painters, brought an application before the Fair Work Commission to challenge the termination of her employment. The respondent, Prestige Painters, argued that the termination was due to genuine redundancy. The dispute was heard and determined by the Fair Work Commission, with Commissioner McCabe presiding. The primary issue before the court was whether the termination of Ms Klavs' employment was genuinely due to redundancy or whether it constituted an unfair dismissal. The court had to consider the evidence and arguments presented by both parties to ascertain whether the termination met the criteria for genuine redundancy as defined under the Fair Work Act 2009.

The court meticulously examined the evidence regarding the circumstances leading to the termination, including the economic and business reasons provided by Prestige Painters. The respondent argued that changes in the company's business structure and financial difficulties necessitated the reduction in workforce, including the position held by Ms Klavs. However, the applicant contested the genuineness of the redundancy, asserting that the termination was part of a broader pattern of unfair treatment and was not based on valid business reasons. The court had to weigh the credibility of the evidence and determine if the respondent had fulfilled its burden of proving genuine redundancy.

In its decision, the Commission found that Prestige Painters had not provided sufficient evidence to establish that the termination of Ms Klavs' employment was genuinely due to redundancy. The court highlighted several inconsistencies and inadequacies in the respondent's case, particularly concerning the economic necessity and the absence of alternative measures to avoid the termination. As a result, the application for termination was dismissed, and the matter was remitted for further consideration in light of the court's findings. The Commission concluded that the termination did not meet the statutory criteria for genuine redundancy, leading to the dismissal of the respondent's application. The court's decision underscores the importance of robust evidence and adherence to the legal standards when claiming genuine redundancy.

Orders