Shaleen Charan v Lamson Concepts Pty Ltd - [2024] FWC 2708

[2024] FWC 2708

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Shaleen Charan
v

Lamson Concepts Pty Ltd

(U2024/6718)

DEPUTY PRESIDENT GRAYSON

SYDNEY, 27 SEPTEMBER 2024

Application for an unfair dismissal remedy -jurisdictional objection - genuine redundancy - application dismissed.

Ms Charan was employed as a Senior Accountant by Lamson Concepts Pty Ltd (Lamson) from 30 October 2023 until 24 May 2024. Lamson contends that Ms Charan’s dismissal was a genuine redundancy within the meaning of s 389 of the Fair Work Act2009 (Cth) (Act). Ms Charan contends that her dismissal was not a genuine redundancy and was harsh, unjust and unreasonable.

After taking into account the views of the Applicant and the Respondent and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a hearing for the matter (per s.399 of the Act). I heard Ms Charan’s unfair dismissal case against Lamson in the Fair Work Commission (Commission) at Sydney on 3 September 2024. Ms Charan gave evidence at the hearing and also relied upon a bundle of documents. Lamson adduced evidence from Ms Kathryn MacMillan, a Human Resources Advisor employed by Circle Recruitment and HR, who had been involved in the dismissal of Ms Charan on behalf of Lamson and Ms Kate Kershaw, Managing Director of Lamson. Lamson also relied upon a number of documents in support of its case.

Initial matters to be considered

Section 396 of the Act sets out four matters which I am required to decide before I consider the merits of the Application.

There is no dispute between the parties, and I am satisfied on the evidence that:

(a)Ms Charan’s application was made within the period required in s 394(2) of the Act;
(b)Ms Charan is a person protected from unfair dismissal; and
(c)Lamson was not a ‘small business employer’ as defined in s 23 of the Act and, as a result, the Small Business Fair Dismissal Code does not apply to Ms Charan’s dismissal.

In relation to the final initial matter which I am required to consider, Lamson contends that Ms Charan’s dismissal was a genuine redundancy and Ms Charan disputes this. Accordingly, I must decide this question before I consider the merits of the application.

Genuine Redundancy

Section 389 of the Act defines genuine redundancy as follows:

389 Meaning of genuine redundancy
(1) A person’s dismissal was a case of genuine 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 consult about the redundancy.

(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:
(a) the employer’s enterprise; or
(b)…

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: [2024] FWC 2708
Decision Date: 27 SEPTEMBER 2024

CaseChat Overview and Summary

In the Fair Work Commission, Ms. Shaleen Charan, the applicant, applied for an unfair dismissal remedy against Lamson Concepts Pty Ltd, the respondent. Ms. Charan was employed by Lamson as a Senior Accountant and her employment was terminated on 24 May 2024. Lamson contends that Ms. Charan's dismissal was a genuine redundancy within the meaning of s 389 of the Fair Work Act 2009. Ms. Charan contends that her dismissal was not a genuine redundancy and was harsh, unjust, and unreasonable. The Deputy President of the Commission, Grayson, heard Ms. Charan's case on 3 September 2024. Ms. Charan gave evidence at the hearing and also relied upon a bundle of documents. Lamson adduced evidence from Ms. Kathryn MacMillan, a Human Resources Advisor employed by Circle Recruitment and HR, who had been involved in the dismissal of Ms. Charan on behalf of Lamson, and Ms. Kate Kershaw, Managing Director of Lamson. The Deputy President found that Ms. Charan's dismissal was a genuine redundancy within the meaning of s 389 of the Act. The Deputy President was satisfied that Lamson no longer required Ms. Charan's job to be performed by anyone because of changes in the operational requirements of Lamson's enterprise, that Lamson had complied with any obligation in a modern award or enterprise agreement to consult about the redundancy, and that it would not have been reasonable in all the circumstances for Ms. Charan to be redeployed within Lamson's enterprise or an enterprise of an associated entity of Lamson. Accordingly, the Deputy President dismissed Ms. Charan's application for relief from unfair dismissal. The Deputy President noted that Ms. Charan would have benefitted from a longer consultation process where she was more fulsomely engaged, felt less pressured, and given more time to process her potential retrenchment.

Orders