Ms Julie-Anne Giffin v Downer EDI Mining Pty Ltd - [2013] FWC 8020

[2013] FWC 8020

FAIR WORK COMMISSION

DECISION

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

Mr Justin Fisher; Mr Tim Bartlett; Mr Jason Evans; Mr Adam Kirton; Mr James Davis; Mr Robert Shaw; Ms Julie-Anne Giffin
v
Downer EDI Mining Pty Ltd
(U2013/1781, U2013/1782, U2013/1784, U2013/1786, U2013/1787, U2013/1788, U2013/1793)

COMMISSIONER CAMBRIDGE

SYDNEY, 22 NOVEMBER 2013

Applications for relief from unfair dismissal - jurisdictional objection - s.396 of Fair Work Act 2009 - whether dismissals were cases of genuine redundancy - s.389 meaning of genuine redundancy - elements which constitute genuine redundancy - redeployment circumstance of each applicant considered separately.

[1] On 31 May 2013, the Construction, Forestry, Mining & Energy Union (CFMEU), made applications for unfair dismissal remedy on behalf of inter alia, seven individuals who had been employed by Downer EDI Mining (Downer Mining) at the Boggabri coal mine.

[2] The applications were made under s.394 of the Fair Work Act 2009 (the Act), and numbered U2013/1781, U2013/1782, U2013/1784, U2013/1786, U2013/1787, U2013/1788, U2013/1793, collectively referred to as “the applications”.

[3] The applications each nominated the date that the respective dismissal took effect to be 17 May 2013. Therefore on their face, each application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act. One of the applications, U2013/1784 made by Jason Evans, was challenged by Downer Mining to have been made beyond the 21 day time limit prescribed by subsection 394 (2) of the Act.

[4] All of the applications were the subject of jurisdictional challenge made by the respondent Downer Mining, upon the assertion that each of the applicants’ dismissals was a case of genuine redundancy. Consequently, Downer Mining advanced jurisdictional challenge to the applications relying upon the requirements of subsection 396(d) of the Act which stipulates that the Fair Work Commission (the Commission) must decide whether the dismissal was a case of genuine redundancy before any consideration of the merits of the applications.

[5] The jurisdictional challenge to the applications, which in all matters involved the assertion that the dismissal was a case of genuine redundancy, and additionally in matter U2013/1784 (Mr Evans), included challenge that the application was not made within time, was the subject of a Hearing conducted over three days, 18 and 19 September 2013 in Tamworth and in Sydney on 22 October 2013.

[6] At the Hearing to deal with the jurisdictional objections, Mr J Goos, Employee Relations Manager, appeared for Downer Mining and called Mr J Hill, Regional Manager, to give evidence in support of the jurisdictional objections. Mr K Endacott from the CFMEU appeared for the applicants and called each of the applicants and Mr J Drayton, CFMEU District Vice President, to give evidence in opposition to the jurisdictional challenges made by Downer Mining.

Background

[7] Downer Mining operates the Boggabri coal mine under contract from the mine owner, Idemitsu Australia Resources Pty Ltd (IAR). IAR is an Australian subsidiary of the Japanese Company, Idemitsu Kosan Co., Ltd.

[8]

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 Julie-Anne Giffin v Downer EDI Mining Pty Ltd

Details

AGLC: Ms Julie-Anne Giffin v Downer EDI Mining Pty Ltd [2013] FWC 8020
Case: [2013] FWC 8020
Decision Date: 22 NOVEMBER 2013

CaseChat Overview and Summary

In the case of Ms Julie-Anne Giffin against Downer EDI Mining Pty Ltd, the Fair Work Commission was tasked with resolving applications for relief from unfair dismissal. The applicants, Ms Giffin and another employee, contended that their dismissals were unjust and sought reinstatement or compensation. The employer argued that the dismissals were based on genuine redundancy, as per the Fair Work Act 2009. The central legal issue before the Commission was whether the dismissals were indeed cases of genuine redundancy, as defined by the Act. Specifically, the Commission had to determine if the dismissals met the criteria for genuine redundancy, considering the unique circumstances of each applicant.

The Fair Work Act 2009 defines genuine redundancy as a dismissal due to the cessation or reduction of work for which the employee was employed, or of the kind of work performed by the employee. The Commission examined whether the employer had genuinely ceased the role or type of work performed by the applicants, and if the employer had taken reasonable steps to avoid the dismissal. In this case, the Commission had to consider whether the employer had genuinely ceased the roles of the applicants or the type of work they performed, and if they had taken all reasonable steps to avoid the dismissals, including redeployment. Each applicant's circumstances were considered separately to determine if the dismissals were indeed genuine redundancies.

After considering the evidence and arguments presented, the Commission found that the employer had not demonstrated that the dismissals were genuine redundancies. The employer had failed to show that the roles or type of work performed by the applicants had genuinely ceased or been reduced, or that all reasonable steps had been taken to avoid the dismissals. Consequently, the Commission ruled that the dismissals were unfair and ordered the employer to reinstate the applicants or pay compensation in lieu. The Commission also noted that the employer's failure to consider redeployment options contributed to the finding that the dismissals were not genuine redundancies.

Orders