Sotirios Kardaras v Ausform Projects Group Pty Ltd - [2024] FWC 2727

[2024] FWC 2727

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Sotirios Kardaras
v

Ausform Projects Group Pty Ltd

(U2024/5693)

DEPUTY PRESIDENT MASSON

MELBOURNE, 1 OCTOBER 2024

Application for an unfair dismissal remedy – jurisdictional objections – whether dismissal consistent with small business fair dismissal code – whether dismissal a genuine redundancy – jurisdictional objections dismissed – merits determined – dismissal found not to be unfair – application dismissed.

On 20 May 2024, Mr Sotirios Kardaras (the Applicant) made an application to the Fair Work Commission (the Commission) under s 394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging he had been unfairly dismissed from his employment with Ausform Projects Group Pty Ltd (the Respondent) on 17 May 2024. The Respondent filed its Form F3 on 15 July 2024 and in doing so raised two jurisdictional objections, those being that the Applicant’s dismissal was consistent with the Small Business Fair Dismissal Code and/or was a case of genuine redundancy.

Following unsuccessful attempts by the Commission to arrange a conciliation conference of the parties, the matter was allocated to my Chambers and was listed for determinative conference/hearing on 30 September 2024 to determine the Respondent’s jurisdictional objections and the merits of the application. In advance of the hearing the Applicant filed his material in accordance with Directions issued by my Chambers. The Respondent failed to file any material or respond to email or telephone communication from my Chambers.

At the conference on 30 September 2024, the Applicant appeared and gave evidence. The Respondent advised via email on the morning of the proceeding that it would not be attending due to the company having been put into administration, evidence of which was furnished by way of an ASIC extract. I am consequently satisfied that the Respondent’s failure to file material or attend the proceedings was not due to it being unaware of the matter. I am further satisfied that the Respondent has been made aware of this matter, having filed a Form F3. It has had ample time and opportunity to respond to the application but has made a conscious decision not to do so. Consequently, I intend to treat the application as uncontested

Background and evidence

The background and evidence in this matter may be shortly stated. The Applicant commenced employment with the Respondent on 6 March 2023, and was initially engaged as a General Labourer on a fixed term contract[1] that expired on 6 September 2023, although his employment continued beyond that date. He was covered in his employment by the Building and Construction General On-site Award 2020[2] (the Award) and was at the time of his dismissal in receipt of a base hourly rate of $48.93[3], on top of which he was entitled to receive penalty rates for overtime, various site and other allowances and superannuation.

The Form F3 filed by the Respondent records that the Applicant was notified of his dismissal on or about 29 April 2024, that there were…

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 2727
Decision Date: 1 OCTOBER 2024

CaseChat Overview and Summary

Sotirios Kardaras applied to the Fair Work Commission (FWC) under section 394 of the Fair Work Act 2009 (Cth) for a remedy, alleging he had been unfairly dismissed by Ausform Projects Group Pty Ltd (Ausform) on 17 May 2024. Ausform raised two jurisdictional objections, arguing that the dismissal complied with the Small Business Fair Dismissal Code and/or was a genuine redundancy. The Commission dismissed the jurisdictional objections and determined that the dismissal was not unfair. The application was dismissed.

The key issues the Commission had to decide were whether Ausform was a small business employer, whether the dismissal complied with the Small Business Fair Dismissal Code, and whether the dismissal was a genuine redundancy. The Commission found that Ausform was a small business employer but did not comply with the Small Business Fair Dismissal Code as there was no evidence that Ausform warned the Applicant about his conduct or capacity prior to dismissal. The Commission also found that the dismissal was not a genuine redundancy because Ausform failed to consult with the Applicant as required by the Building and Construction General On-site Award 2020. Having determined the jurisdictional issues, the Commission considered the merits of the application. The Commission found that the dismissal was not harsh, unjust or unreasonable given that the reason for the dismissal was the cessation of Ausform’s operations, which led to the redundancy of the Applicant’s position. The failure to consult did not render the dismissal unfair as consultation was unlikely to have altered the outcome. The Commission also found that while the Applicant was not paid certain entitlements on termination, this was not sufficient to make the dismissal unfair given the Applicant could pursue those claims in another jurisdiction. The application was dismissed.

The Commission did not order reinstatement or compensation as reinstatement was impractical given that Ausform had ceased operations. Compensation could not be calculated as it would require estimating how long the Applicant would have remained employed but for the dismissal, which was not possible given the circumstances.

Orders