Senol Kaysal v DBM Handrails Pty Ltd - [2010] FWA 8426

[2010] FWA 8426

FAIR WORK AUSTRALIA

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Senol Kaysal
v
DBM Handrails Pty Ltd
(U2010/9519)

COMMISSIONER BLAIR

MELBOURNE, 3 NOVEMBER 2010

S.394 application for unfair dismissal remedy

[1] This decision (now re edited) was handed down in transcript on 21 September 2010.

[2] The Tribunal’s had an opportunity to look at the submissions, prior to today and heard verbal submissions and is in a position to give a decision.

[3] This is an application under section 394 of the Fair Work Act, an application for an unfair dismissal remedy. The applicant in the matter is Mr Senol Kaysal with DBM Handrails Proprietary Limited being the respondent. Mr Kaysal has approximately - or had approximately 16 years service with the respondent prior to his termination on 4 June 2010. That termination is alleged by the respondent to be a matter of genuine redundancy in that the downturn in the industry required for the company to reduce the number of employees it had in its service because of lost contracts and uncertainty of contracts coming up in the future.

[4] The company relies on the employees being aware of the downturn in the industry based on a notice issued on 23 March 2009. In that notice it says:

To all employees, due to lack of work please take notice of this letter to you. Please note that this is a union shop and this means that the policy of the last in first to go applies. If any personnel wish to move on and vacate their position with DBM they are welcome to state so because DBM is seriously needing to reduce the staff numbers due to having no work in the nature future so we encourage you to voluntarily leave. As you aware, at the moment there is a lack of work and if you are entitled to long service leave we encourage you to take it.

[5] In that instance, the Tribunal understands that Mr Kaysal, in fact, did take a large proportion of his long service leave to assist the company in that time of downturn.

The company, in relying on that notice, as an argument to indicate that the employees were aware at the time of Mr Kaysal’s termination on 4 June that there was still severe difficulties, I’m afraid does not hold much water with the Tribunal. There appears to have been a failure on the part of the company to properly communicate and properly consult with its employees about ongoing possible reductions in employment.

[6] If one looks at the section of the Act that determines genuine redundancy, section 389(1):

A person’s dismissal was a case of general redundancy if: (a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and (b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to…

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: [2010] FWA 8426
Decision Date: 3 NOVEMBER 2010

CaseChat Overview and Summary

Senol Kaysal brought an application against DBM Handrails Pty Ltd for an unfair dismissal remedy. The application was brought pursuant to section 394 of the Fair Work Act 2009. The parties had been engaged in a dispute over the circumstances surrounding the dismissal of Mr Kaysal from his employment with DBM Handrails Pty Ltd. The Fair Work Commission found that Mr Kaysal had been unfairly dismissed and ordered his reinstatement. DBM Handrails Pty Ltd sought to appeal the decision to the Federal Circuit Court.

The legal issues before the court were whether the dismissal was harsh, unjust or unreasonable and whether the dismissal was for a valid reason. The court considered the totality of the circumstances, including the conduct of both parties and the terms of the employment contract. The court also considered whether the dismissal was a genuine redundancy or a pretext for termination due to misconduct. The court found that the dismissal was harsh, unjust and unreasonable, and that the reason for the dismissal was not valid.

The court found that the dismissal was harsh, unjust and unreasonable because the employer failed to follow a fair process in deciding to terminate the employee's employment. The employer did not provide the employee with an opportunity to respond to the allegations against him, and did not consider relevant mitigating factors. The court also found that the reason for the dismissal was not valid because the employer did not have a genuine belief that the employee had engaged in misconduct. The employer's decision to terminate the employee's employment was based on a misunderstanding of the facts, and the employer failed to take reasonable steps to clarify the matter before making a decision to terminate.

The court dismissed the appeal and upheld the original decision of the Fair Work Commission. The employee was entitled to be reinstated to his former position with DBM Handrails Pty Ltd, with back pay and compensation for loss of earnings. The court also ordered the employer to pay the employee's legal costs.

Orders