MA000002 - Decision - 26 May 2014




Fair Work Act 2009

s.394—Unfair dismissal

Catherine Taha
Endota (No 1) Pty Ltd



Application for relief from unfair dismissal.

[1] This Order arises out of an application made by Catherine Taha (the Applicant) under section 394 of the Fair Work Act 2009 (the Act),lodged with the Fair Work Commission (the Commission) on 25 March 2014. Endota (No 1) Pty Ltd (the Respondent) raised an objection to the Commission’s jurisdiction,that the Applicant’s termination was a genuine redundancy.

[2] In relation to redundancy,section 389 of the Act states:

    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.

[3] The Applicant commenced employment on 23 May 2013. She was terminated on 20 March 2014 by way of a termination letter dated 20 March 2014. In that termination letter the Respondent advised the Applicant that they had examined redeployment options which existed within the Respondent’s company. The options included copywriter,therapist within the company owned spa,either at Williamstown or Daylesford,and human resources adviser based in the Respondent’s head office. The Respondent stated in the letter that they had considered each of those three options,assuming that the Applicant would be interested in them at the time. The Respondent stated in the letter,“On balance,though,you seem ill-suited to any position of these types of work”and then decided to terminate the Applicant,based on redundancy.

[4] There was a meeting conducted on 17 March 2014 where a snapshot was provided of the volume of work that the Applicant was doing. There was a preparedness to meet the Applicant on 19 March 2014 to advise her of the redundancy;however,the Applicant went on worker’s compensation leave on 18 March 2014 and that meeting did not then occur.

[5] The Commission is satisfied that the Clerks Private Sector Award 2010 [MA000002] is not an award that applies to this industry and therefore does not cover the Applicant. The Commission has not been able to identify any particular modern award that would cover the services provided by the Respondent.

[6] Having taken into account the material that has been provided and the evidence that has been provided,particularly the evidence of Ms Gleeson,on behalf the Respondent,where she indicated that the position that was occupied by the Applicant has not been replaced and that any functions that were performed by the Applicant have not been allocated or distributed to anyone else within the business,the Commission is satisfied that the termination of the Applicant by way of redundancy was,in fact,a genuine redundancy.

[7] The Commission understands that the Applicant believes that there is a discrepancy in relation to superannuation and possibly some underpayments. The Applicant is entitled to pursue claims regarding underpayment through the Fair Work Ombudsman and claims regarding superannuation through the Australian Taxation Office.

[8] In relation to the matter before it,the Commission determines that the termination was a genuine redundancy and,as the Applicant is not eligible to bring a claim to the Commission under those provisions of the Act,the matter is dismissed.

Printed by authority of the Commonwealth Government Printer

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MA000002 - Decision - 26 May 2014
26 May 2014
26 May 2014
MA000002 - Decision - 26 May 2014
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