[2016] FWC 1689 [Note: An appeal pursuant to s.604 (C2016/3380) was lodged against this decision and the order arising from this decision - refer to Full Bench decisions dated 2 June 2016 [[2016] FWCFB 3345] and 25 July 2016 [[2016] FWCFB 4675] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nick Tsiftelidis
v
Crown Melbourne Limited
(U2015/5662)

COMMISSIONER CRIBB

MELBOURNE, 24 MARCH 2016

Application for relief from unfair dismissal - jurisdiction - genuine redundancy - application dismissed.

[1] Mr Nick Tsiftelidis (Applicant) has made an application, under section 394 of the Fair Work Act 2009 (the Act), for an unfair dismissal remedy in relation to his dismissal by Crown Melbourne Limited (the employer, Crown, Respondent).

[2] On 10 June 2015, the company filed a jurisdictional objection on the grounds that the Applicant’s dismissal was a case of genuine redundancy. The jurisdictional objection, together with the merits of the application, were heard together on 9 September 2015 and 1 October 2015. Written closing submissions were filed by the Respondent on 2 November 2015 and by Mr Tsiftelidis on 23 November 2015. The company filed its Submissions in Reply on 7 December 2015.

[3] Ms Williamson, in-house counsel, appeared for Crown whilst Mr Tsiftelidis appeared on his own behalf.

[4] This decision deals, in the first instance, with Crown’s jurisdictional objection. If necessary, the substantive application by Mr Tsiftelidis for an unfair dismissal remedy will be dealt with after that.

1. Was Mr Tsiftelidis’ dismissal a case of genuine redundancy?

[5] Section 385 of the Act provides that:

“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

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

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[6] In relation to the meaning of ‘genuine redundancy’, The Act 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 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.”

[7] I will deal with each of these requirements in turn.

(a) Section 389(1)(a) - no longer required the job to be performed

Submissions and evidence

Crown

Submissions

[8] It was submitted on…

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: [2016] FWCFB 3345
Decision Date: 2 June 2016

CaseChat Overview and Summary

In the case of Nick Tsiftelidis v Crown Melbourne Limited, the applicant, Mr Tsiftelidis, sought relief from an alleged unfair dismissal. The matter was heard in the Fair Work Commission, which has jurisdiction to hear and determine unfair dismissal claims. Mr Tsiftelidis claimed that his dismissal by Crown Melbourne Limited was harsh, unjust, or unreasonable, and that the company had failed to follow a valid redundancy process. The employer argued that the dismissal was a genuine redundancy and that it had complied with all necessary procedures.

The primary legal issue before the Commission was whether the dismissal was a genuine redundancy. The Commission considered whether the employer had a genuine reason to terminate Mr Tsiftelidis' employment, whether the employer had taken reasonable steps to avoid the redundancy, and whether the dismissal was procedurally fair. The Commission also considered the criteria for determining a genuine redundancy, including whether the position held by Mr Tsiftelidis was genuinely redundant, whether the employer had taken reasonable steps to avoid the redundancy, and whether the dismissal was procedurally fair.

After considering the evidence presented by both parties, the Commission found that the employer had a genuine reason to terminate Mr Tsiftelidis' employment, that the employer had taken reasonable steps to avoid the redundancy, and that the dismissal was procedurally fair. The Commission found that the position held by Mr Tsiftelidis was genuinely redundant, that the employer had followed a valid redundancy process, and that the dismissal was not harsh, unjust, or unreasonable. The application for relief from unfair dismissal was therefore dismissed.

The Fair Work Commission dismissed the application for relief from unfair dismissal and found that the dismissal was a genuine redundancy. No further orders were made.

Orders