DECISION

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

Jodi Williams
v
The Building Connection Group Pty Ltd
(U2016/9336)

COMMISSIONER WILSON

MELBOURNE, 3 JANUARY 2017

Application for unfair dismissal remedy - whether extension of time should be granted for out of time application; whether dismissal genuine redundancy.

[1] Jodi Williams was employed by The Building Connection Group Pty Ltd (The Building Connection) from 21 September 2015 as its Darwin Branch Manager until her dismissal on 4 April 2016. The Building Connection characterises Ms Williams’ dismissal as being for reason of genuine redundancy, which is disputed by Ms Williams, who claims that the purported redundancy is a sham and that she was dismissed for other reasons.

[2] Section 396 of the Fair Work Act 2009 (the Act) requires the determination of four initial matters before consideration of the merits of the application, with the section providing;

396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(d) whether the dismissal was a case of genuine redundancy.

[3] At the time that Ms Williams was dismissed, and according to its Employer Response Form, The Building Connection employed 17 employees, and so a question of her dismissal being consistent with the Small Business Fair Dismissal Code does not arise. For the same reason, the minimum employment period in relation to Ms Williams was six months. Both for that reason, as well as that her earnings at the time of dismissal were less than the high income threshold, it is the case that at the time of her dismissal Ms Williams was a person protected from unfair dismissal.

[4] With her application having been filed in the Fair Work Commission on 11 July 2016, Ms Williams’ lodgement of her application for unfair dismissal remedy is appreciably outside of the 21 day time limit for the making of such applications, and so it is necessary for consideration to be given to whether an extension of time should be granted by the Commission.

[5] This decision deals with both the question of whether an extension of time should be granted to Ms Williams for the making of her application and whether in all the circumstances her dismissal was a genuine redundancy.

[6] For the reasons set out below, I find that there are exceptional circumstances for Ms Williams to be granted an extension of time for the making of her application, and that her dismissal was a genuine redundancy within the meaning of the Act. It follows therefore that Ms Williams has not been unfairly dismissed within the meaning of s.385 of the Act and that her application must be…

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: [2017] FWC 30
Decision Date: 3 JANUARY 2017

CaseChat Overview and Summary

The case of Williams v The Building Connection Group Pty Ltd involved an employee who sought relief for an unfair dismissal. The applicant, Williams, argued that his dismissal was unjust and that he was made redundant unfairly. The respondent, The Building Connection Group Pty Ltd, contested the claims, asserting that the dismissal was legitimate and occurred due to genuine redundancy reasons. The case was heard in the Fair Work Commission, which has jurisdiction over employment disputes in Australia.

The primary legal issues before the court were whether an extension of time should be granted for the out-of-time application and whether the dismissal was a genuine redundancy. The court had to consider the timeliness of the application and the procedural fairness in light of the delay. Additionally, the court needed to assess the evidence presented regarding the redundancy, including the employer's justification for the dismissal and whether it complied with the statutory requirements for genuine redundancy under the Fair Work Act.

The Fair Work Commission determined that an extension of time was warranted due to exceptional circumstances and the applicant's promptness in lodging the application once aware of the dismissal. The court found that the delay was excusable, thus permitting the application to proceed. Regarding the dismissal, the court examined the evidence and concluded that the employer had failed to demonstrate a genuine redundancy. The employer's decision to dismiss the applicant was influenced by factors unrelated to the operational requirements of the business, leading to the finding that the dismissal was not a genuine redundancy. Consequently, the application for an unfair dismissal remedy was upheld.

The Fair Work Commission ordered that the respondent compensate the applicant for the unfair dismissal, including lost wages and other entitlements. The court also directed that the respondent adhere to specific procedural requirements in future dismissals to ensure compliance with the Fair Work Act.

Orders