Priest v HFB Pty Ltd ATF HFB Admin Trust

[2016] FWC 802

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr David Priest
v
HFB Pty Ltd ATF HFB Admin Trust T/A Howe Ford & Boxer
(U2015/12142)
COMMISSIONER JOHNS	BRISBANE, 5 FEBRUARY 2016

Application for Relief of Unfair Dismissal – genuine redundancy – job no longer required as

opposed to the continuing need for the performance of functions – consultation obligations –

redeployment – redundancy, but not a genuine redundancy.

Introduction

[1] On 6 October 2015, an application pursuant to s.394 of the Fair Work Act 2009 (FW

Act) for a remedy for unfair dismissal was lodged by David Priest (applicant).

[2]        Attempts to conciliate the matter were unsuccessful. Consequently, the matter was

listed for hearing. At the hearings conducted on 4 February 2016:

a)	the applicant represented himself and gave evidence on his own behalf.
b)	HFB Pty Ltd ATF HFB Admin Trust T/A Howe Ford & Boxer

(respondent/employer/HFB) was represented by its sole director Terry Ford. Mr

Ford gave evidence on behalf of the respondent and was cross-examined by the

applicant.

c) Mr Ford called Shona Sherman, Practice Manager – HBF Accounting Pty Ltd, to

give evidence. Ms Sherman had filed two witness statements (Exhibit “R1” and

“R2”) and was cross-examined by the applicant.

d) Mr Ford also filed witness statements by:

i.       Chris Heavon-Jones, the respondent’s financial planner (Exhibit “R6”);

ii.       Timothy Davis, the sole director of HFB Accounting Pty Ltd (Exhibit

“R7”);

iii.       Clair Harrison, principal of Harrison Human Resources, a HR consulting

firm (Exhibit “R8”);

iv.       Emily Banks, a former employee of the respondent and now an employee

[2016] FWC 802

of HFB Accounting Pty Ltd (Exhibit “R9”); and

v.       Helen Dundon, an employee of the respondent (Exhibit “R10”).

[3]        The Respondent did not call upon any witnesses other than Ms Sherman and Mr Ford

to give evidence and, therefore, they were not available for cross-examination. However, the

applicant did not object to the Commission receiving Exhibits “R6” – “R10 into evidence.

[4]        In coming to this decision the Commission, as presently constituted, has had regard to

all of the evidence filed in the proceeding and evidence of the witnesses who attended at the

Commission on 4 February 2016.

[5]        In addition the Commission, as presently constituted, has had regard to the

submissions filed on behalf the parties (Exhibits “A2”, “R3” and “R4”).

[6]        During the hearing the parties referred the Commission to a number of authorities as

follows:

Applicant

a)	UES (Int'l) Pty Ltd v Harvey [2012] FWAFB 5241;
b)	Ball v Metro Trains Melbourne T/A Metro Trains [2012] FWA 8384;
c)	Irnya Margolina v Jenny Craig Weight Loss Centres Pty Ltd [2011] FWA 5215;

Respondent

d)	Millen v Electrix Pty Ltd [2014] FWC 6912;
e)	Ventyx Pty Ltd v Mr Paul Murray [2014] FWCFB 2143; and
f)	Guerra v Speedie Waste Pty Ltd [2014] FWC 8940.

[7]        In coming to this decision the Commission, as presently constituted, has had regard to

those…