DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rajnesh Sharma
v
GTS Australia Pty Ltd
(U2020/7833)

DEPUTY PRESIDENT LAKE

BRISBANE, 4 DECEMBER 2020

Application for unfair dismissal remedy - whether termination a genuine redundancy - obligation to consult – small business dismissal code did not apply – redundancy not related to capacity or conduct - failure to consult - whether termination harsh, unjust or unreasonable – dismissal not unfair – application not dismissed.

Introduction

[1] Mr Rajnesh Sharma (the Applicant) lodged an application on the 8 June 2020 for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (the Act). He disputed his termination of employment from GTS Australia (the Respondent).

[2] The Respondent raised two jurisdictional matters: that it was a genuine redundancy, and in the alternative, the Respondent contended that it is a small business employer and if not a genuine redundancy then the dismissal was consistent with the Small Business Fair Dismissal Code (the Code).

[3] A conciliation conference was held on the 2 July 2020, however the matter did not resolve. I issued directions on 21 July 2020 for submissions. The Respondent’s material was due on 28 July 2020 and the Applicant’s material was due on 11 August 2020. No material was received from the Applicant and an extension of one day was provided. The Applicant submitted his material the following day.

[4] A hearing by telephone was held on the 18 September 2020 where the Applicant represented himself and the Respondent was also self-represented. Mr Adam Stokes, the Corporate Manager for GTS, represented the Respondent.

Background

[5] The Applicant entered into an agreement to sell his business to GTS Australia and enter into an employment agreement with the Respondent on 21 October 2018. The position was Customs Manager and paid a salary of $120,000 per annum, with a car allowance of $15,000. The Respondent is a customs clearance and transport provider.

[6] The Applicant performed work in the role during this period, however early in 2020, management identified the business was having some financial difficulties and these issues were exacerbated as a result of the COVID-19 pandemic.

[7] The business undertook a review of its operations and identified several cost savings. These included: one employee’s salary package was reduced by $30,000; a Storeman in the warehouse was made redundant; and two administrative employees had their hours reduced. The Applicant was also made redundant.

[8] The Applicant had time off in January without pay which he volunteered to assist the business in its financial situation. He took further time off, some of it paid, during the first four months of the year.

[9] Mr Joseph Peter, the company CEO, telephoned the Applicant on 5 May to advise him that the business had made a decision to terminate his employment contract and make him redundant due to the financial stress on the business.

[10] The Applicant contends that the decision…

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: [2020] FWC 6556
Decision Date: 4 DECEMBER 2020

CaseChat Overview and Summary

Rajnesh Sharma sought an unfair dismissal remedy against GTS Australia Pty Ltd, alleging his termination was unfair. The case was heard in the Fair Work Commission. Sharma argued that his dismissal was not a genuine redundancy, and that the company failed to consult with him as required by law. GTS Australia Pty Ltd contended that the termination was a genuine redundancy and that the small business dismissal code did not apply to their operations.

The central legal issues the court had to resolve were whether the dismissal was a genuine redundancy, whether the company was obliged to consult with Sharma before making the decision, and if the dismissal was harsh, unjust or unreasonable. The court examined the evidence regarding the nature of Sharma's employment and the reasons for his termination, including the employer's obligation to consult under the applicable laws.

The court determined that the dismissal was not a genuine redundancy as it was not related to Sharma's capacity or conduct, and the company failed to consult with him as required. However, the court found that the dismissal was not harsh, unjust or unreasonable in the circumstances. Consequently, the application for an unfair dismissal remedy was dismissed. The court's decision was based on the evidence presented and the applicable legal standards.

Orders