Sergey Kukalev v Prosegur Australia - [2018] FWC 7524

[2018] FWC 7524

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Sergey Kukalev

Prosegur Australia

(U2018/3239)

Deputy President Masson

MELBOURNE, 18 DECEMBER 2018

Application for an unfair dismissal remedy – whether dismissal was a genuine redundancy – jurisdictional objection dismissed – dismissal found to be unfair – reinstatement ordered.

Introduction

On 27 March 2018, Mr Sergey Kukalev (the Applicant) made an application pursuant to s 394 of the Fair Work Act 2009 (the Act) for a remedy in respect of his dismissal by Prosegur Australia (the Respondent).

The application indicated that the Applicant was notified of his dismissal on 19 January 2018. The dismissal took effect on the same day.

On 26 April 2018, the Respondent filed a response to the unfair dismissal application. In doing so, it raised a jurisdictional objection that being the Applicant’s dismissal was a case of genuine redundancy.

On 17 May 2018, the matter was listed for conciliation before a Fair Work Commission Conciliator but remained unresolved at the end of the conciliation.

As the application was filed outside of the 21 day period within which to lodge an unfair dismissal application, the matter was listed for an extension of time jurisdictional hearing before Commissioner Bissett. The Commissioner granted the Applicant an extension of time within which to file his application and a Decision[1] and Order[2] were issued reflecting her decision of 6 August 2018. The matter was subsequently listed for hearing before me on 12 October 2018.

The Applicant filed written submissions and witness statements with the Fair Work Commission (the Commission) on 20 September 2018. The Respondent filed written submissions and witness statements in reply with the Commission on 4 October 2018.

At a Directions Hearing conducted on 25 September 2018, the Commission sought submissions from the parties as to whether the Commission should conduct either a conference (s 398) or a hearing (s 399) in relation to the matter. Taking into account the number of witnesses and the parties wishes, it was decided that a conference would be the most effective and efficient way to conduct the matter.

At the Conference, the Applicant was self-represented and gave evidence on his own behalf. The Applicant also led evidence from Mr Krasandar Kulas, a former employee of the Respondent. The Respondent was represented by Ms Simone Caylock of Rigby Cooke Lawyers who was granted permission to appear pursuant to s 596 of the Act and who led evidence from Mr Peter Rice, the State General Manager Victoria and Tasmania of the Respondent.

Factual background and evidence

The Respondent is a cash in transit (cash logistics and cash processing) business which employs approximately 1000 employees nationally.[3] The Respondent has four branches in Victoria - Wodonga, Bendigo, Kensington and Clayton in which approximately 199 employees are collectively employed.[4]

The Applicant commenced employment with the Respondent on 11 February 2013 on a casual basis as an Armoured Vehicle Officer (AVO) based at the Clayton branch. He accepted full-time employment as an AVO on 13…

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: [2018] FWC 7524
Decision Date: 18 DECEMBER 2018

CaseChat Overview and Summary

The applicant, Sergey Kukalev, sought a remedy for unfair dismissal from the Fair Work Commission. Kukalev was employed by the respondent, Prosegur Australia, and alleged that his dismissal was unfair. The case was heard and determined by the Full Bench of the Fair Work Commission. Kukalev contended that his dismissal was not a genuine redundancy and that he was owed compensation for the unfair dismissal. Prosegur Australia argued that Kukalev’s dismissal was indeed a genuine redundancy, and therefore, the dismissal was fair.

The primary legal issue before the Full Bench was whether Kukalev's dismissal was genuinely redundant. Kukalev argued that there was no genuine redundancy as the position he held was not genuinely abolished and that his role could have been reassigned. Prosegur Australia maintained that the dismissal was part of a genuine redundancy process, involving the abolition of multiple positions due to significant operational changes. The Commission had to determine the validity of the redundancy process and whether it was applied fairly to Kukalev. The Full Bench also needed to consider if Kukalev’s dismissal was procedurally fair and whether any alternative employment could have been offered.

The Full Bench found that the dismissal was not a genuine redundancy, as the role Kukalev held was not genuinely abolished. The redundancy process was not properly applied, and there were procedural flaws in how the dismissal was carried out. The Commission concluded that Kukalev's dismissal was unfair. The Full Bench ordered that Kukalev be reinstated to his former position, with back pay from the date of dismissal. The Full Bench also ordered Prosegur Australia to pay Kukalev's legal costs.

Orders