[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 decision dated 2 June 2016 [[2016] FWCFB 3345] 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 behalf of Crown that the role of Sports Consultant…

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] FWC 1689
Decision Date: 24 MARCH 2016

CaseChat Overview and Summary

Nick Tsiftelidis, an employee, sought relief from an unfair dismissal against Crown Melbourne Limited, the employer. The matter was heard in the Fair Work Commission, where the primary issue was whether the employer had a genuine redundancy situation to justify the termination of the employee’s employment. The employee contested the employer’s claim, arguing that the dismissal was not fair and that the employer had not met the criteria for genuine redundancy. The court had to determine whether the employer had established a genuine redundancy and if the dismissal was procedurally fair.

The court examined the evidence presented by the employer regarding the redundancy situation. It considered the employer's efforts to redeploy the employee, the employee's skills, and the employer's business needs. The court also assessed the fairness of the dismissal process, including whether the employee was adequately consulted and provided with an opportunity to respond to the redundancy claims. The court found that the employer had demonstrated a genuine redundancy situation and that the dismissal process was procedurally fair.

Based on the evidence and the applicable legal principles, the court concluded that the employer had met the requirements for a genuine redundancy. The court also determined that the dismissal was fair, considering the process followed and the circumstances of the redundancy. Consequently, the application for relief from unfair dismissal was dismissed. The court held that the employer had acted appropriately in terminating the employee's employment due to genuine redundancy.

No further orders were made beyond the dismissal of the application for relief from unfair dismissal. The court found in favour of the employer, upholding the validity of the redundancy process and the dismissal.

Orders