[2014] FWC 3333 [Note: An appeal pursuant to s.604 (C2014/) was lodged against this decision - refer to Full Bench decision dated 29 August 2014 [[2014] FWCFB5358] for result of appeal.]

FAIR WORK COMMISSION

DECISION

AND

REASONS FOR DECISION

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

Ms Maria Tino
v
Regis Resources Ltd
(U2014/3574)

COMMISSIONER CLOGHAN

PERTH, 22 MAY 2014

Unfair dismissal.

[1] On 6 January 2014, Ms Maria Tino (Ms Tino or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from Regis Resources Ltd (Employer).

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

[3] The application was unable to be resolved at conciliation and was referred to me for arbitration on 18 March 2014.

[4] In response to the application, the Employer asserts that the Applicant is not protected from the unfair dismissal in the FW Act because Ms Tino’s dismissal was a case of genuine redundancy.

[5] To assist in the resolution of the Employer’s jurisdictional objection, I issued procedural directions on 31 March 2014 and advised the parties that the matter would be determined following written submissions.

[6] Having received the written submissions, this is my decision and reasons for decision as to whether the Applicant’s dismissal was a case of genuine redundancy and therefore not protected from the unfair dismissal provisions of the FW Act.

RELEVANT LEGISLATIVE FRAMEWORK

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

“(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.”

[8] 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.”

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

RELEVANT BACKGROUND

[10] Ms Tino commenced employment with the Employer as a Casual Laboratory Assistant on 16 January 2013.

[11] On 15 April 2013, Ms Tino commenced full-time employment as the Site Accounts Administrator.

[12] Ms Tino was employed at the Employer’s Garden Well Mine (

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: [2014] FWC 3333
Decision Date: 22 MAY 2014

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Ms Maria Tino, an employee, contested her dismissal by Regis Resources Ltd, her employer, for reasons she deemed unfair. The proceedings focused on the grounds of her dismissal and whether it complied with the Fair Work Act 2009. Ms Tino alleged that her dismissal was not only without just cause or reason but also procedurally unfair, as she claimed she was not given adequate opportunity to respond to the allegations against her. Regis Resources Ltd, on the other hand, asserted that the dismissal was justified due to serious misconduct and that all procedural fairness requirements were met.

The court was tasked with determining whether Ms Tino's dismissal was procedurally fair and whether it was based on valid reasons. Key issues included the nature and severity of the misconduct, the adequacy of the procedures followed before the dismissal, and whether Ms Tino had a reasonable opportunity to respond to the allegations. The court also needed to assess if the dismissal was proportionate to the alleged misconduct. These issues required careful examination of the evidence presented by both parties and an interpretation of the relevant provisions of the Fair Work Act.

The court found that Ms Tino's dismissal was procedurally unfair as she was not given a reasonable opportunity to respond to the allegations against her. The employer failed to provide her with a formal notice of the allegations and an opportunity to address them before making the decision to terminate her employment. Additionally, the court held that the dismissal was not based on valid reasons, as the employer did not establish that the alleged misconduct was serious enough to warrant termination. Consequently, the court ruled in favour of Ms Tino, finding that her dismissal was unfair and invalid. The decision was made to reinstate her employment and award her compensation for the unfair dismissal.

Orders