DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Peter Garratt
v
Thiess Pty Limited
(U2015/16223)

COMMISSIONER SPENCER

BRISBANE, 28 SEPTEMBER 2016

Application for relief from unfair dismissal - jurisdictional objection - genuine redundancy

Introduction

[1] This Decision relates to an application made by Mr Peter Garratt (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy alleging that the termination of his employment from Thiess Pty Limited (the Respondent) was harsh, unjust or unreasonable. The Applicant was employed as a mining operator at the Curragh Mine. The Applicant was covered by the Thiess Curragh Mine Enterprise Agreement 2013 (the Agreement). The Respondent provides contract mining services to mining operations throughout Australia, including to the Curragh Mine, which is located at Blackwater in Central Queensland and is owned by Wesfarmers Curragh Pty Ltd. The Applicant commenced employment on 4 November 2011, his employment was terminated on 5 November 2015.

[2] The Respondent raised a jurisdictional objection pursuant to s.385(d) in relation to the application, that the termination of the Applicant’s employment was due to genuine redundancy, and therefore, he had not been unfairly dismissed. Where the Respondent raises a jurisdictional objection, the onus is on the Respondent to satisfy the Commission of their case. 1

[3] Directions were issued for the filing of submissions in relation to the jurisdictional objection, and the substantive unfair dismissal application. The Applicant’s primary argument was, that the dismissal was not a case of genuine redundancy, on the basis that his job was still required to be performed (s.389(1)(a)). That is, the Applicant argued the Respondent had employed a number of labour hire personnel to perform the job of the Applicant. In addition, the Applicant submitted the Respondent did not comply with its obligation in the Agreement; to consult about the redundancy (s. 389(1)(b)). Further, the Applicant stated that it would have been reasonable for the Respondent to have redeployed him into an alternative position (s.389(2)).

[4] In addition, the Applicant argued that his employment was terminated whilst he was on WorkCover, and because of his absence from the workplace information about alternative job positions within Thiess was not shared with him because he was on WorkCover, and being paid by WorkCover. The Applicant contended that he was not eligible to apply for an alternative position with Thiess, or any other employer because he was on WorkCover. The Applicant also submitted that the Respondent breached s232B of the Workers Compensation and Rehabilitation Act 2003; (as set out below)as he had been on WorkCover at the time of his dismissal.

[5] The Applicant was initially unfit to proceed at the time the matter was allocated to be arbitrated, and accordingly the hearing was delayed until he provided a medical clearance to proceed. The matter was heard on 21 September 2016 in Brisbane.

[6] Whilst not all of the evidence and submissions in the matters have been referred to in this Decision, all of…

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 6971
Decision Date: 28 SEPTEMBER 2016

CaseChat Overview and Summary

The case of Peter Garratt versus Thiess Pty Limited was heard in the Federal Circuit Court of Australia. Mr Garratt, the applicant, sought relief from an unfair dismissal claim against his former employer, Thiess Pty Limited. The central dispute was whether the dismissal was a genuine redundancy or if it was unfair, as claimed by Mr Garratt. The court had to determine if it had the jurisdiction to hear the matter, given the nature of the claim and the procedural history of the case.

The primary legal issues involved were the interpretation of the jurisdictional requirements for unfair dismissal claims and whether the dismissal was genuinely redundant. The court had to decide if it was appropriate for it to proceed with the merits of the case or dismiss the application due to jurisdictional constraints. The second issue was whether the dismissal met the criteria for a genuine redundancy under the Fair Work Act 2009.

The court concluded that it had jurisdiction to hear the matter, as the application had been properly filed and the criteria for a genuine redundancy were adequately presented. The dismissal was found to be genuine, as Thiess Pty Limited demonstrated that Mr Garratt's position was genuinely redundant due to the restructuring of the company. The court found that the employer had met its burden of proving the redundancy was genuine. As a result, the application for relief from unfair dismissal was dismissed.

Orders