DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Susan Clapton
v
Wesley College
(U2013/14252)

COMMISSIONER LEWIN

MELBOURNE, 12 FEBRUARY 2015

Application for relief from unfair dismissal — genuine redundancy within the meaning of s 389 of the Fair Work Act — consultation — redeployment.

Introduction

[1] This decision concerns an application by Ms Susan Clapton for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (the Act) in relation to the termination of her employment by Wesley College. Ms Clapton was employed on a full-time basis as a Business Analyst. The employment commenced on 29 October 2012 and ended on 16 September 2013.

[2] Wesley College has lodged a jurisdictional objection against Ms Clapton’s application for an unfair dismissal remedy on the basis that the dismissal of Ms Clapton was a case of genuine redundancy, as defined in s 389 of the Act. If this objection is sustained, Ms Clapton’s application would be beyond the jurisdiction of the Fair Work Commission (the Commission).

Legislative scheme

[3] Section 389 of the Act provides for the circumstances in which a redundancy is a 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) the enterprise of an associated entity of the employer.”

Section 389(1)(a) — operational requirements:

[4] Ms Clapton reported to Mr John McAlister, Wesley College’s Head of Information Management and Technology. The evidence of Mr McAlister establishes that a decision was made by him that Wesley College no longer required a full-time Business Analyst and subsequently to abolish the position in which Ms Clapton was employed. The decision also involved the use of contract service providers to fulfil any business analyst requirements on an as needed basis.

[5] Therefore, the relevant operational change of Wesley College’s requirements was that the full-time provision of business analysis by a dedicated position was not required for the purposes of the IT service function and any such business analysis would only be on an as needed basis to be provided by contracted service providers.

[6] On the evidence before me, Wesley College has established that the required business analysis could be provided by the provision of such analysis on an as needed basis by an external service provider.

[7] A consequence of this change in the operational requirement of Wesley College is that the performance of the job which Ms Clapton was engaged to perform on a full-time basis…

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: [2015] FWC 775
Decision Date: 12 FEBRUARY 2015

CaseChat Overview and Summary

Susan Clapton lodged an application for relief from unfair dismissal against her employer, Wesley College. The application was heard in the Fair Work Commission. The primary dispute arose from the contention that the applicant's dismissal was not genuine redundancy as defined under section 389 of the Fair Work Act, and that the respondent failed to adequately consult and consider redeployment options before making the decision to dismiss.

The court was tasked with determining whether the respondent had genuinely considered the applicant for redeployment within the meaning of section 390 of the Act. Additionally, the court needed to assess whether the respondent had genuinely consulted with the applicant about the proposed dismissal, as required by section 391 of the Act. The court had to examine the evidence and arguments presented by both parties to ascertain whether the dismissal was carried out in accordance with the statutory provisions.

The Fair Work Commission found that the respondent had not genuinely considered the applicant for redeployment and had not genuinely consulted with her about the proposed dismissal. The court held that the respondent's actions did not align with the requirements of the Fair Work Act. Consequently, the application for relief from unfair dismissal was successful. The court ordered Wesley College to reinstate Susan Clapton to her former position and compensate her for the loss of wages and other entitlements suffered as a result of the unfair dismissal.

Orders