Valentina Gallina v Sunset Coast International English School Pty Ltd Trading as Lexis English
[2025] FWC 1831
•26 JUNE 2025
| [2025] FWC 1831 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Valentina Gallina
v
Sunset Coast International English School Pty Ltd Trading AS Lexis English
(U2024/8842)
| COMMISSIONER SCHNEIDER | PERTH, 26 JUNE 2025 |
Application for an unfair dismissal remedy
On 31 July 2024, Ms Valentina Gallina (Ms Gallina or the Applicant) made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy alleging that she had been unfairly dismissed from her employment with the Sunset Coast International English School Pty Ltd (Sunset or the Respondent). Ms Gallina seeks compensation.
Ms Gallina filed her application within the required 21-day period. Ms Gallina was a person protected from unfair dismissal as she earned under the high-income threshold at the time of her dismissal. Ms Gallina had been employed for more than 6 months at the time of her dismissal. The Small Business Fair Dismissal Code did not apply to Ms Gallina, as Sunset employed more than 15 employees at the time of her dismissal.
The parties attended a conciliation before the Commission on 25 September 2024. However, they were unable to resolve the matter. Sunset raised a jurisdictional objection, asserting that Ms Gallina was not dismissed. I determined this jurisdictional objection, dismissing it.[1]
The matter was then listed for hearing regarding the merits of the application on 9 April 2025. Both parties were self-represented at the hearing before the Commission. Final written submissions from the parties were received on 11 April 2024.
Factual Background – Submissions and Evidence
Ms Gallina was employed as a casual English Teacher with Sunset from 13 April 2023 until the termination of her employment on 26 July 2024.
Ms Gallina submits that there was no valid reason for the termination as the Respondent still required English Teachers and is still operating.
Ms Gallina submits that the Respondent did not follow a procedurally fair process in terminating her employment.
Ms Gallina submits that the termination of her employment was disproportionate due to the impact it had on her. Ms Gallina states that she had been experiencing personal hardship (of a private nature, which will not be divulged in this decision) prior to the termination of her employment and the sudden loss of income had greatly impacted her ability to support herself and her young child.
Ms Gallina submits that the process followed by the Respondent in terminating her employment was not consistent with the process it had followed across the board.
The Respondent submits that there was a valid reason for the termination of Ms Gallina’s employment. The Respondent submits that, due to an operational downturn in the business, it no longer had any work available for Ms Gallina.
The Respondent submits that a Ministerial Direction from the Department of Home Affairs,[2] made in December 2023, announced a significant reduction of international students in Australia and had a severe impact on its operations.
The Respondent submits that, by March 2024, enrolment numbers with the school had decreased by approximately 50% which resulted in it requiring less teachers, including Ms Gallina.
The Respondent submits that, at or around the same time as Ms Gallina’s employment came to an end, the following staff were either made redundant or had their casual hours reduced to zero:
· Administration staff made redundant – 4 persons.
· Teachers who had hours reduced to zero – 8 persons.
· Teachers removed from the morning class schedule – 2 persons.
· Teachers removed from the schedule or offered relief work – 3 persons.
· Teachers who voluntarily disengaged – 11 persons.
The Respondent provided copies of their rosters during the period of 24 June to 30 August 2024. These rosters confirmed the following:
· Student numbers decreased from 247 to 174 by the end of August.
· Number of classes on offer fell from 21 classes to 11 classes, across both morning and evening classes.
· No new staff were employed.
The Respondent also notes that Ms Gallina previously worked at its Scarbrough Campus. However, due to the operational downturn, the Respondent now only has one campus in Perth city centre, with the Scarbrough campus being closed in December 2024.
Consideration
The Respondent did not raise a jurisdictional objection that Ms Gallina had been made redundant, not that there would be a redundancy payment available given the casual nature of Ms Gallina’s employment.
However, practically, the reality of the situation is that the Respondent was experiencing a decrease in operations resulting in the need to reduce both the rostered hours and headcount of its staff. Accordingly, some permanent employees were made redundant, and some casual employees were informed their hours would be cut or reduced all together. I am satisfied the Respondent has demonstrated that it was experiencing genuine operational downturn.
Under the relevant Modern Award,[3] the Respondent had consultation obligations regarding major workplace change, including changes that may result in termination of employment. In this matter, I am not satisfied that the Respondent carefully complied with its obligations.
It is clear that the Respondent had signalled to staff about the industry downturn and that this could affect rostering and hours. However, on the materials currently before me, I am not satisfied the communication could be reasonably interpreted as giving notice of the expected effects on employees, or other matters likely to affect its employees, given what occurred.
There is email evidence of Ms Gallina being informed, on 18 July 2024, that due to the downturn in teaching requirements for the 10 week block due to shortly commence on 29 July 2024, there would not be scheduled work available for her. As stated in my previous decision, this email was the communication of the Applicant’s termination, I am also not satisfied this could not have met consultation requirements given the process had already occurred.
It appears employees were generally aware of industry wide downturn due to decreased enrolments, but consultation from the Respondent to the Applicant regarding the reality of the situation and severity of the impending effects was lacking. I find that the Respondent should have taken further action to engage directly with impacted employees in a manner that would accurately reflect the situation and possible changes.
Having considered the submissions of the parties, it is clear the reason for termination was the due to the significant operational downturn. However, this is not a reason related to the capacity or conduct of the Applicant (s387(a) of the Act).
In UES (Int'l) Pty Ltd v Leevan Harvey (UES),[4] a Full Bench of the Commission considered a matter on appeal in which the employee was granted a remedy for unfair dismissal. The employee in that matter was made redundant following a downturn in business. The employee was not consulted, in accordance with the relevant legislative instrument, prior to his termination.
The Full Bench, in unison with the Commissioner in the first instance, found that the employee’s termination was not a genuine redundancy within the meaning of the Act, due to this failure to consult.
The majority in UES went on to determine that, as the employee was terminated due to a downturn in business, there was no valid reason related to his capacity or conduct.
The same can be said for the matter currently before me. Accordingly, as the reason was not related to Ms Gallina’s capacity or conduct, in consideration of section 387(b) – (c) of the Act, she could not have been notified of a valid reason.
There is no suggestion that Ms Gallina was unreasonably refused a support person at any meeting with the Respondent (s 387(d) of the Act).
There had been previous discussions between Sunset and Ms Gallina about her performance. However, I am satisfied this was not a factor in or reason for the termination of Ms Gallina (s 387(e) of the Act).
Sunset is not a small business employer for the purpose of the Act. However, the business does not appear to have meaningful internal human resources management expertise or specialists. I have formed the view that some of the frustration and concern raised by Ms Gallina in relation to the process followed was likely due to the lack of experienced human resources management expertise. As a result, I have formed that opinion that the size of Sunset’s operations and lack of internal human resources management support were factors in the dismissal of Ms Gallina (s 387(f) - (g) of the Act).
Neither party made submissions in relation to section 387(h) of the Act. However, Ms Gallina provided evidence confirming that, at the time of her termination, she had been experiencing personal hardship in her private life. The Respondent was aware of the circumstances the Applicant was experiencing. It does not appear that Sunset targeted Ms Gallina for dismissal due to these circumstances. I do consider the personal circumstances faced by Ms Gallina at the time of her dismissal to be relevant consideration in relation to the termination of her employment.
Referring back to the Decision in UES, it is noted that any unmet criteria in section 389 of the Act, regarding genuine redundancy, may be accounted for under section 387(h) of the Act when considering any other matters deemed relevant to the determination of an unfair dismissal.[5] Accordingly, I have considered the deficient consultation process noted earlier in this decision.
It is also useful to note the Decision in Maswan v Escada Textilvertrieb T/A ESCADA (Escada),[6] which bears some similarity to the matter presently before the Commission. In Escada, when considering other relevant matters under section 387(h) of the Act, Vice President Watson addressed a failure to consult regarding redundancy. In doing so, the Vice President outlined:
“In my view a decision to dismiss on account of redundancy will only be harsh, unjust or unreasonable if the rationale for the decision is seriously undermined or if there is a serious error in procedure such that renders the termination unfair in the circumstances. Here the decision appears open to the employer to make. The failure to consult is not a trivial matter. But as it is clear that consultation was highly unlikely to have negated the operational reasons for the dismissal or lead to any other substantive change, I do not believe that the failure to consult prior to the date of termination rendered the dismissal unfair. Given the evidence in relation to the operational need to restructure, I am of the view that it is likely that Mr Maswan would have been dismissed in any event, even if timely consultation had occurred.
…
For the reasons above I find that Mr Maslan’s dismissal does not fall within the definition of a genuine redundancy in the Act because of the failure of Escada to comply with its obligations to consult over proposed terminations arising from changes at the workplace.
I also find that the termination of his employment is not harsh, unjust or unreasonable as the decision was the result of a soundly based business decision to restructure the operations and merge two positions. The failure to consult did not lead to a different conclusion to that which would have, in all likelihood, been reached had consultation occurred. Therefore this failure does not render the dismissal unfair. The application is dismissed.”[7]
Having considered the material before me, and the circumstances of this matter, I am not satisfied that the deficiencies outlined, although not ideal, had any notable influence on the inevitable outcome of the matter. Had a more careful consultation been undertaken it would have been highly unlikely to negate the reasons for and outcome of the dismissal.
The circumstances that resulted in the dismissal of Ms Gallina are unfortunate. Ms Gallina was a casual employee whose hours were at the mercy of the overall operational requirements of the Respondent’s business. And, unfortunately, the Respondent suffered a significant operational downturn which resulted in a genuine commercial need to reduce staff and hours. On the evidence before the Commission, Ms Gallina was not unfairly targeted by the Respondent during this process. Had a flawless process been executed in the lead up to the dismissal of Ms Gallina, there would have been no substantive change to the unfortunate outcome of the circumstances.
Conclusion
Having considered the matters in section 387 of the Act, I have determined that the dismissal of Ms Gallina was not harsh, unjust, or unreasonable. It was therefore not unfair.
Accordingly, the application is dismissed, an Order to that effect is issued.[8]
COMMISSIONER
[1] [2025] FWC 499; [PR784518].
[2] Direction 107 – Order for considering and disposing of Student Guardian visa applications and offshore Subclass 500 (Student) visa applications.
[3] [MA000075].
[4] [2012] FWAFB 5241.
[5] [2012] FWAFB 5241, [27].
[6] [2011] FWA 4239.
[7] Ibid, [39] – [42].
[8] [PR788632].
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