United Workers' Union v Bervar Pty Ltd

The case of United Workers' Union v Bervar Pty Ltd involves Ms Kaur, who worked for Bervar Pty Ltd, a ready-made pizza production business. Kaur began her employment as a casual worker and progressed to a full-time position as a level 3 production worker. The dispute centres on events that transpired on 6 May 2020, which led to Kaur's termination and subsequent claim for unfair dismissal by the United Workers' Union. The Federal Court of Australia was tasked with determining whether Kaur's dismissal was unfair and whether she was genuinely offered the opportunity to resign under section 385(2) of the Fair Work Act 2009.

The court was required to decide if Kaur's dismissal was unfair within the meaning of section 383 of the Fair Work Act. The central issue was whether Kaur was effectively offered the opportunity to resign as per section 385(2) of the Act. This involves a two-step inquiry: first, whether there was an offer to resign, and second, whether the offer was genuine. The court needed to examine the context, content, and circumstances surrounding the alleged offer made by Mr Blewett, Bervar's Human Resource Manager. The court also had to assess if the dismissal was harsh, unjust, or unreasonable, considering the totality of the circumstances.

The court found that Bervar did not genuinely offer Kaur the opportunity to resign. The alleged offer made by Mr Blewett, communicated to Kaur's husband, was not made directly to Kaur and lacked clarity. The court held that for an offer to be genuine, it must be made directly to the employee and should be clearly articulated. The indirect communication through Mr Singh and the lack of clarity about the terms of the offer did not meet these criteria. Furthermore, the court found that Kaur's dismissal was harsh, unjust, or unreasonable given that there was no genuine resignation offer and the manner in which the dismissal was handled was inappropriate.

The court ordered that the dismissal of Ms Kaur was unfair and ordered Bervar Pty Ltd to reinstate Kaur to her position as a level 3 full-time production worker and to pay her lost wages and entitlements from the date of termination. Bervar was also ordered to pay the costs of the proceedings.