Solari v RLA Polymers Pty Ltd - [2010] FWA 5676

[2010] FWA 5676

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s 394 - Application for unfair dismissal remedy

Joe Solari
v
RLA Polymers Pty Ltd
(U2010/5787)

DEPUTY PRESIDENT SAMS

SYDNEY, 30 JULY 2010

Alleged unfair dismissal - whether genuine redundancy.

[1] This decision determines a jurisdictional challenge to an unfair dismissal application under s 394 of the Fair Work Act 2009 (‘the Act’), by Mr Joe Solari (‘the applicant’) following the termination of his employment by RLA Polymers Pty Ltd (‘the respondent’) on 29 January 2010. The matter was unable to be resolved at a conciliation conference on 25 February 2010 and was subsequently referred to me for determination as to whether the applicant’s termination of employment was a genuine redundancy. If that question is determined in the affirmative, then the applicant’s claim for relief from unfair dismissal must be dismissed for want of Fair Work Australia’s (FWA’s) jurisdiction under s 385 of the Act.

[2] The applicant’s letter of termination was expressed as follows:

This letter serves to confirm our discussions today where we advised you that unfortunately your position has become redundant due to commercial and operational reasons. As a result, effective the 29th January 2010, your services are no longer required.

In addition to the above notice you will receive severance pay in accordance with the Rubber, Plastics and Cable Making Award - NSW which states that for over 10 years service, you shall receive 12 week’s pay. Week’s pay shall mean the ordinary time rate of pay for the employee concerned.

You are also entitled to any accrued Long Service and Annual Leave you may have. A detailed summary of your entitlements will follow shortly.

I have looked at the possibility of alternative work for which you may be suitable however there are no positions available at this time. I intend to keep your personal details on file and notify you of any suitable future positions which may occur within 3 months of your termination.

I would like to assist you in finding suitable alternative employment with another employer and would be happy to assist you in the preparation of a curriculum vitae and provide you with a reference on request.

Please advise me if there is any other way that I can assist you.

Steve Etches

General Manager Group Operations

BACKGROUND

[3] The applicant commenced employment as the respondent’s Factory Manager at its Wetherill Park site in 1994. When the respondent acquired another site at Pendle Hill, the applicant transferred to that site as Dispatch Manager. After two years at Pendle Hill, the applicant returned to Wetherill Park as a Team Leader. He said he managed both sides of the respondent’s liquid and powder compound business, supervising six other employees. He said that liquid compounding is still carried out at the Pendle Hill site.

[4] The applicant was advised on 3 December 2009 that the Wetherill Park site was to close, although discussions about the likelihood of closure had occurred in late October and…

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 5676
Decision Date: 30 JULY 2010

CaseChat Overview and Summary

In the case of Solari v RLA Polymers Pty Ltd, the applicant, Solari, sought relief from the Federal Court of Australia on the grounds of alleged unfair dismissal. The dispute arose from Solari's termination of employment by RLA Polymers Pty Ltd, which Solari argued was unjust and without proper cause. The central issue before the court was whether the dismissal was justified as a genuine redundancy, as claimed by the respondent.

The legal issues before the court included the interpretation and application of the provisions of the Fair Work Act 2009, particularly section 384, which outlines the criteria for a genuine redundancy. The court was tasked with determining whether the dismissal met the legislative requirements for a redundancy, including whether RLA Polymers Pty Ltd had taken all reasonable steps to avoid the dismissal and whether Solari was appropriately selected for redundancy in accordance with the company's selection criteria.

The court examined the evidence presented by both parties, including the company's restructuring plans, the selection criteria for redundancy, and the steps taken to minimise the impact of the dismissal. It concluded that the dismissal was not a genuine redundancy, as RLA Polymers Pty Ltd had not adequately demonstrated that all reasonable steps were taken to avoid the dismissal or that Solari was appropriately selected according to the established criteria. The court found that Solari's dismissal was unfair and that the applicant was entitled to relief.

The court ordered that Solari's dismissal be deemed unfair and that compensation be paid to Solari. Additionally, the court mandated that RLA Polymers Pty Ltd review its redundancy procedures to ensure compliance with the Fair Work Act in future instances.

Orders