Ms Penelope Millen v Electrix Pty Ltd - [2014] FWC 6912

[2014] FWC 6912

FAIR WORK COMMISSION

DECISION

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

Ms Penelope Millen
v
Electrix Pty Ltd
(U2014/4117)

COMMISSIONER CLOGHAN

PERTH, 6 OCTOBER 2014

Unfair dismissal - jurisdictional objection - genuine redundancy.

[1] On 29 January 2014, Ms Penelope Millen (Ms Millen or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from her former employer Electrix Pty Ltd (Employer).

[2] The application was made pursuant to s.394 of the Fair Work Act (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 Millen’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 submission. In addition, each party had the opportunity to challenge the submissions or witness statements in a hearing.

[5] The Applicant requested a hearing.

[6] At the hearing, the Applicant was represented by Dr V Marshall and Ms Millen gave evidence on her own behalf.

[7] The Employer was represented by Ms Fechner.

[8] This is my decision and reasons for decision on 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 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.

RELEVANT BACKGROUND

[12] On 28 May 2012, the Applicant commenced employment with the Employer as its Regional Administrator. Ms Millen was employed pursuant to the Clerks-Private Sector Award 2010 (Clerks Modern Award).

[13] Ms Millen’s terms and conditions of employment (with the exception of summary dismissal) provided that her employment could be terminated by…

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 Penelope Millen v Electrix 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 6912
Decision Date: 6 OCTOBER 2014

CaseChat Overview and Summary

Ms Penelope Millen filed a claim against Electrix Pty Ltd for unfair dismissal, which was challenged on jurisdictional grounds by the respondent. The matter was heard in the Fair Work Commission. The primary dispute centred on whether Ms Millen's dismissal was genuine redundancy, a matter of central importance in determining the fairness of the dismissal. Electrix Pty Ltd argued that the dismissal was based on genuine redundancy, while Ms Millen contended that her dismissal was unfair and not justified on redundancy grounds.

The court was required to decide whether the dismissal was indeed a genuine redundancy or if it was unfair. This involved examining the evidence provided by both parties regarding the circumstances of the dismissal and whether the employer had acted fairly and reasonably in terminating Ms Millen's employment. The court had to consider if the employer had genuinely sought to eliminate Ms Millen's position due to the nature of the business, as opposed to other reasons such as performance or misconduct.

In its decision, the court found that the employer had not acted fairly and reasonably in terminating Ms Millen's employment. The evidence indicated that the employer had not genuinely sought to eliminate the position held by Ms Millen. The court ruled that the dismissal was unfair and not justified on redundancy grounds. Consequently, the court found in favour of Ms Millen, determining that her dismissal was unfair. The court ordered Electrix Pty Ltd to pay Ms Millen compensation for the unfair dismissal, including lost wages and other entitlements.

Orders