DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Peter Guinea
v
Workpac Pty Ltd
(U2020/11059)

COMMISSIONER SIMPSON

BRISBANE, 29 MARCH 2021

Application for unfair dismissal – Jurisdictional objection –– Employer has not complied with obligation to consult – Not a genuine redundancy – Reinstatement inappropriate – Compensation ordered

[1] On 17 August 2020, Mr Peter Guinea (Guinea/the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy against Workpac Pty Ltd (Workpac/The Respondent).

[2] Workpac raised a jurisdictional objection on the basis Mr Guinea’s dismissal was a case of genuine redundancy and therefore Mr Guinea was not able to pursue an unfair dismissal application.

[3] The matter was listed for a conciliation before a Commission staff Conciliator on 8 September 2020 however it did not settle and was allocated to me for arbitration. I determined that both the jurisdictional objection and the merits of the application should be heard together. The hearing for the matter took place on 28 January 2020 via Microsoft Teams video.

[4] Mr Guinea was represented by Mr Adam Walkaden of the CFMMEU and Mr Dan Williams from MinterEllison appeared on behalf of Workpac.

Background

[5] On 8 March 2017, Mr Guinea was employed as a Coal Mining Operator and was deployed by Workpac, a labour hire company, to work at the Daunia Mine (the Mine), which is an open cut coal mine in central Queensland that is operated by BMA.

[6] As a Coal Mine Operator, Mr Guinea operated a Haul Truck at the Mine. Mr Guinea worked to a 7/7 roster though job shared the full time equivalent () role with another Coal Mine Operator. This meant that Mr Guinea worked two swings (with seven days off in between) and then had five weeks off work. During that five-week period, Mr Guinea’s job share partner worked his two swings (with seven days off in between).

[7] On the afternoon of Tuesday 30 June 2020, Mr Guinea submitted he was advised by telephone call from Workpac that his role at the Mine was no longer required.

[8] On 7 July 2020 Workpac confirmed in a letter that Mr Guinea’s role at the Mine was no longer required. This was said to be the result of a restructure that had occurred at the Mine. The letter went on to state that Mr Guinea’s notice period was four weeks and that during the notice period (which Mr Guinea was not required to work) that Workpac would seek to identify any reasonable alternative positions.

[9] In that four-week notice period, Workpac did not redeploy Mr Guinea and on 31 July 2020 his employment was terminated.

[10] Workpac submitted that Mr Guinea was dismissed by reason of redundancy. Mr Guinea does not accept that his dismissal was a genuine redundancy.

EVIDENCE

[11] Mr Guinea gave evidence that he…

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.

Continue reading Peter Guinea v Workpac Pty Ltd

Details

AGLC: Peter Guinea v Workpac Pty Ltd [2021] FWC 1633
Case: [2021] FWC 1633
Decision Date: 29 MARCH 2021

CaseChat Overview and Summary

The case of Peter Guinea versus Workpac Pty Ltd involved an application for unfair dismissal, with the court ruling on a jurisdictional objection regarding the employer's failure to consult with the employee before dismissing him. The Federal Circuit Court of Australia was tasked with determining whether Workpac Pty Ltd had complied with its obligations under the Fair Work Act 2009, specifically concerning the requirement to consult with the employee before making a decision to dismiss him. The case centred around the dismissal of Peter Guinea, who alleged that he was unfairly dismissed by his employer, Workpac Pty Ltd, and sought reinstatement or compensation.

The central legal issue the court had to decide was whether the employer had fulfilled its obligation to consult with Peter Guinea before dismissing him, and whether the dismissal was a genuine redundancy or otherwise unfair. Additionally, the court needed to determine if reinstatement was an appropriate remedy, or whether compensation should be awarded instead. The court's analysis involved examining the employer's adherence to the statutory consultation requirements and evaluating the circumstances surrounding the dismissal, including whether it was justified and whether there were alternative employment options available to the employee.

In its decision, the court found that Workpac Pty Ltd had not complied with its obligation to consult with Peter Guinea before dismissing him, as required by the Fair Work Act 2009. The court concluded that the dismissal was not a genuine redundancy and that reinstatement was not an appropriate remedy. Instead, the court determined that Peter Guinea was entitled to compensation for his unfair dismissal. The court's reasoning was based on the employer's failure to engage in the required consultation process, the lack of a valid reason for the dismissal, and the availability of alternative employment options for the employee.

The final orders of the court were that Workpac Pty Ltd was to pay Peter Guinea compensation in the amount of $36,000, reflecting the financial loss resulting from his unfair dismissal. Additionally, the court ordered that Workpac Pty Ltd take steps to ensure compliance with its obligations to consult with employees before making dismissal decisions in the future.

Orders