DECISION

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

Van-Son Thai
v
Email Ventilation Pty Ltd
(U2018/9896)

DEPUTY PRESIDENT SAMS

SYDNEY, 27 JUNE 2019

Application for an unfair dismissal remedy – Supervisor/Tradesman in a small manufacturing business – jurisdictional objection – alleged genuine redundancy – claim the employee was not dismissed – failure to consult about redundancy – ultimatum to accept reduction in pay – employer a small business – alleged poor performance – no records of any warnings – dismissed by text message – dismissal harsh, unjust and unreasonable – reinstatement inappropriate – further submissions on remedy.

INTRODUCTION

[1] Mr Van-Son Thai was employed as First Class Sheet Metal Worker by Email Ventilation Pty Ltd (the ‘Company’ or the ‘respondent’) until his position was allegedly made redundant, on 30 July 2018, by the Company’s Manager, Sole Director and Owner, Mr Javier Vilches in a text message which read:

‘Sonny

Effective immediately I give notice of termination of your employment, please note you are required to work your notice period.

Sonny

Please note that your (sic) are entitled to 4 to 5 weeks employment termination notice period.’

[2] Mr Son Thai has worked in manufacturing since 1979, having migrated to Australia from Vietnam in 1978. He is 62 years old. He was first employed by the Company on 2 August 2006, and at the time of the termination of his employment, he was paid $1,107.64 gross per week. His terms and conditions of employment were governed by the Building and Construction General On-site Award 2010 (the ‘Award’). He is a member of the Australian Manufacturing Workers’ Union (‘AMWU’ or the ‘Union’).

[3] On 25 September 2018, Mr Son Thai (hereafter the ‘applicant’) filed an application pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’), seeking a reinstatement order from the Fair Work Commission (the ‘Commission’) as a remedy for his alleged unfair dismissal. It was said that his dismissal was not a genuine redundancy, as the respondent did not comply with its consultation obligations under the Award, and the dismissal was otherwise ‘harsh, unjust and unreasonable’, pursuant to s 387 of the Act.

[4] In its Form F3, the respondent raised, what to my mind are three alternative, but irreconcilable objections to the application; firstly, that there was no dismissal; secondly, his dismissal was a case of genuine redundancy; and thirdly, as a small business the respondent had complied with the Small Business Fair Dismissal Code (the ‘Code’). In explaining the objections, the respondent said:

‘Mr Thai was not dismissed; it was a mutual agreement after he was offered a pay reduction and he did not agree and said he preferred to leave his employment.’

It is common ground that the respondent is a small business (three employees). The respondent produces and supplies roof ventilation fittings for commercial and large industrial construction jobs. Accordingly, it will be necessary, assuming the other objections are dismissed, to…

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: [2019] FWC 4116
Decision Date: 27 JUNE 2019

CaseChat Overview and Summary

The application before the Fair Work Commission (FWC) concerned a dispute between Van-Son Thai, the applicant, and Email Ventilation Pty Ltd, the respondent. The applicant, a tradesman and supervisor in the respondent's small manufacturing business, sought an unfair dismissal remedy. The primary issue was whether the respondent had wrongfully dismissed the applicant, and if so, whether it was harsh, unjust, or unreasonable. The respondent argued that the dismissal was genuine, related to a redundancy, and that there was no obligation to consult given the small size of the business.

The court needed to decide if the dismissal was genuinely related to redundancy, considering the employer's conduct and the nature of the business. Additionally, it was necessary to determine if there was a failure to consult as required by the Fair Work Act. The applicant's claims of not being provided with adequate warnings or opportunities to improve performance also had to be evaluated. The court also had to consider whether the dismissal process was fair and if the employer's actions were reasonable in the circumstances.

The FWC found that the applicant was indeed dismissed, and the dismissal was harsh, unjust, or unreasonable. The employer failed to adequately consult with the applicant and provide opportunities to improve performance. There were no records of warnings or documented performance issues, and the dismissal was executed via a text message. The Commission determined that the employer's conduct did not meet the requirements for a genuine redundancy, and the dismissal process was flawed. Consequently, the Commission ordered the respondent to pay the applicant compensation for the unfair dismissal.

Orders