Paul Redfern v Central Coast Commercial Properties & Projects Pty Ltd t/a the Willows Motor Inn - [2010] FWA 7978

[2010] FWA 7978

FAIR WORK AUSTRALIA

DECISION

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

Paul Redfern
v
Central Coast Commercial Properties & Projects Pty Ltd t/a The Willows Motor Inn
(U2010/8340)

Sharon Redfern

Central Coast Commercial Properties & Projects Pty Ltd t/a The Willows Motor Inn

(U2010/8342)

DEPUTY PRESIDENT SAMS

SYDNEY, 18 OCTOBER 2010

Alleged unfair dismissals - whether terminations of employment were as a result of genuine redundancy.

[1] Mr Paul Redfern and his wife, Sharon (‘the applicants’) were employed as the live in manager/handypersons of the Quality Inn - The Willows Motor Inn (‘the Motel’) at Wyoming, New South Wales. The Motel was owned by Central Coast Commercial Properties & Projects Pty Ltd (‘the respondent’), a company owned by Mr Peter Brand until it was sold to Mr Stephen Clarke on or about 16 April 2010, when Mr Clarke paid a deposit and exchanged contracts for the purchase of the Motel. Both applicants were terminated on 17 April 2010, as a consequence of the sale of the business, having been employed by the respondent since 14 September 2009. In their letters of dismissal, the respondent maintained that their terminations of employment were due to ‘redundancy on sale of the business’ and that, in any event, the respondent was a small business and, as both applicants had been employed for less than 12 months, they were not eligible to lodge claims of unfair dismissal. On 29 April 2010, applications seeking unfair dismissal remedies were lodged by both applicants, pursuant to s 394 of the Fair Work Act 2009 (‘the Act’). Conciliation of the claims proved unsuccessful and the matters were referred to me for hearing as to Fair Work Australia’s (FWA’s) jurisdiction to deal with the claims.

[2] At this juncture, it is also relevant to note that Cambridge C published a decision on 27 August 2010, (after this decision was reserved) concerning the termination of employment of the chef at the Motel at about the same time as the applicants and for allegedly the same reason: See Macdonald v Central Coast Commercial Properties & Projects Pty Ltd T/A the Willows Motor Inn[2010] FWA 6626. It seems to me that the Commissioner’s decision was of some relevance to the outcome of these proceedings (particularly the evidence as to when the applicants were aware of the sale of the Motel). Accordingly, I invited both parties to put further submissions in light of the Commissioner’s decision. Neither chose to do so by the required deadline of 4:00pm, 27 September 2010. I shall return to the evidence before the Commissioner later.

EVIDENCE

For the applicants

[3] The applicants agreed that when they were both hired they had been told by the owners (Mr Peter Brand and his son Mr Phillip Brand) that the Motel was on the market. They claimed they were told that, in the unforeseen event of a sale, they would be looked after - given a bonus and new positions in…

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

AGLC: Paul Redfern v Central Coast Commercial Properties and Projects Pty Ltd t/a the Willows Motor Inn [2010] FWA 7978
Case: [2010] FWA 7978
Decision Date: 18 OCTOBER 2010

CaseChat Overview and Summary

Paul Redfern brought a claim against Central Coast Commercial Properties & Projects Pty Ltd t/a the Willows Motor Inn, alleging unfair dismissal. The dispute arose out of the termination of Redfern's employment by the respondent, which he claimed was not for genuine redundancy as required by the Fair Work Act 2009 (Cth). The case was heard and determined by the Fair Work Commission.

The central legal issue for the Commission to decide was whether the respondent had validly dismissed Redfern on the basis of genuine redundancy. The respondent argued that the dismissals were justified as they were a result of genuine redundancy, while Redfern contended that the dismissals were unfair. The Commission had to examine the evidence provided by both parties to ascertain the true nature of the dismissals.

In reaching its decision, the Commission considered the evidence presented by both parties and determined that the respondent had failed to establish that Redfern's dismissals were for genuine redundancy. The Commission found that the respondent had not adequately demonstrated that the positions held by Redfern were genuinely redundant, and that the dismissals were instead a result of other factors. Consequently, the Commission ruled that Redfern's dismissals were unfair.

The Commission ordered the respondent to pay Redfern compensation for the unfair dismissals, including lost wages and other entitlements. The Commission also made orders for the respondent to provide a written apology and take steps to ensure compliance with the Fair Work Act in the future. The decision serves as a reminder to employers of the importance of ensuring that dismissals are genuinely based on redundancy, and the potential consequences of failing to do so.

Orders