DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shiralee Read
v
Paskov CWF Pty Ltd
(U2020/721)

DEPUTY PRESIDENT BEAUMONT

PERTH, 29 MAY 2020

Application for an unfair dismissal remedy – genuine redundancy and Small Business Dismissal Code – not a genuine redundancy – lack of a reason for the dismissal - dismissal unjust, unreasonable and unfair.

[1] This decision concerns an application by Ms Shiralee Read for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth)(Act).

[2] Ms Read started working for Paskov CWF Pty Ltd (t/a Classic Window Finishings) (Classic Windows) as a full-time sales/showroom administrator on or around 12 March 2018. However, by 9 January 2020, Ms Read had been dismissed, purportedly by way of a redundancy.

[3] Ms Read said that before she was dismissed, Ms Violeta Paskov, Director of Classic Windows, had initially offered her two days of work a week. Aggrieved by the treatment she received from Ms Paskov, Ms Read complained about the lack of consultation about the proposed changes to her full-time role and informed Ms Paskov she would be seeking legal advice. On the date of her dismissal, Ms Read was informed that the two days a week were withdrawn, and she was to leave the premises. It came to Ms Read’s attention that a new sales/showroom administrator would be commencing on 13 January 2020, working one day a week.

[4] It has been advanced that Ms Read’s dismissal had not arisen from a genuine redundancy and was unfair. As to the contentions of Classic Windows, Ms Paskov asserts that the dismissal was not unfair, and she did what was required for the business. Ms Paskov further submitted that she was under no obligation to speak to Ms Read about what had happened (referring to the changes within the business) and that is all there was to it.

[5] It should be noted at this point, Classic Windows, through Ms Paskov, did not comply with directions, was provided with an extension of time in which to file materials having made a request for the same on 6 May 2020, was unresponsive regarding the invitations concerning a conciliation conference, and at the time of hearing had not filed any materials including a Form F3 Employer Response. Notwithstanding, I granted leave for Ms Paskov to give oral testimony at the hearing, but regrettably Ms Paskov’s evidence was not particularly illuminating and did not assist her case.

[6] Ms Paskov’s exiguous oral testimony was provided in direct competition with verbal instructions from her car’s satellite navigation system. Although there was at times great difficulty discerning whether I should be turning left or right, eventually Ms Paskov’s oral testimony was able to be received, once she desisted driving while giving evidence.

[7] As no evidence was filed by Classic Windows, Ms Paskov’s oral testimony was perfunctory and unpersuasive, and Ms Read’s evidence was uncontested - with the exception of the nature of…

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.

Continue reading Shiralee Read v Paskov CWF Pty Ltd

Details

AGLC: Shiralee Read v Paskov CWF Pty Ltd [2020] FWC 2509
Case: [2020] FWC 2509
Decision Date: 29 MAY 2020

CaseChat Overview and Summary

In the matter of Shiralee Read v Paskov CWF Pty Ltd, the Federal Circuit Court was tasked with determining whether the dismissal of the applicant, Ms Read, from her employment with Paskov CWF Pty Ltd was fair and justified. Ms Read sought an unfair dismissal remedy, arguing that her termination was unjust, unreasonable, and unfair, as well as claiming that the dismissal did not meet the criteria for a genuine redundancy under the Small Business Dismissal Code. Paskov CWF Pty Ltd, on the other hand, contended that the dismissal was lawful and fell within the genuine redundancy provisions.

The central legal issues revolved around whether the dismissal of Ms Read was genuinely redundant and whether it was conducted in accordance with the requirements of the Small Business Dismissal Code. Specifically, the court needed to determine if there was a genuine redundancy situation and if the employer provided a valid reason for the dismissal. Additionally, the court had to assess whether the dismissal was unjust, unreasonable, and unfair, considering the overall circumstances of the case.

The Federal Circuit Court found that the dismissal was not a genuine redundancy as there was no valid reason provided for the termination. The court considered the evidence and determined that the employer's reasons for the dismissal were not substantiated and did not meet the criteria for a genuine redundancy. Furthermore, the court found that the dismissal was unjust, unreasonable, and unfair due to the lack of a legitimate reason for terminating Ms Read's employment. As a result, the court ruled in favour of Ms Read and granted her an unfair dismissal remedy.

The court ordered Paskov CWF Pty Ltd to pay Ms Read compensation for the unfair dismissal. The amount of compensation was determined based on the factors outlined in the Fair Work Act, including the duration of employment and the nature of the dismissal. Additionally, the court directed the employer to reinstate Ms Read to her former position or, if that was not possible, to provide her with equivalent employment or payment in lieu of notice. The decision underscored the importance of employers providing valid reasons for dismissals and adhering to the provisions of the Small Business Dismissal Code.

Orders