1
[2013] FWC 2485
DECISION
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Felicity Klavs
v
Prestige Painters
(U2012/14250)
COMMISSIONER SIMPSON BRISBANE, 24 MAY 2013
Termination of employment - genuine redundancy - s.394 application dismissed.
[1] This matter concerns an application under s 394 of the Fair Work Act 2009 (“the
Act”) by Ms Klavs (“the Applicant”) who alleges that the termination of her employment as
a painter with Prestige Painting Services Cairns Pty Ltd (“the Respondent”) was unfair in
accordance with the definition contained within s 385 of the Act.
[2] The application was filed on the 17 October 2012 and a conciliation conference was
conducted on 12 November 2012 which was not successful in resolving the matter. The
matter was allocated to me and listed for Directions 5 March 2013. A further conciliation
conference was listed for 8 April 2013 which again was unsuccessful. I issued a decision on
22 April 2013 dismissing an application by the Respondent under section 587.1
[3] The matter was then listed for hearing on 24 April 2013 in Cairns. The Applicant
represented herself and the Respondent was represented by Mr Dean Cameron of the
Queensland Master Builders Association Industrial Union of Employers (QMBA). The
central issue in the case is whether the Applicant’s termination was a genuine redundancy or
whether her dismissal was not a redundancy and was because she made a complaint to the
Fair Work Building and Construction (“FWBC”) in connection with living away from home
allowances under the Building and Construction General On-site Award 2010 (“the
Award”). The Applicant was clear in that she sought a remedy of reinstatement.2
CONSIDERATION
[4] Section 385 says as follows:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
AUSTRALIA FAIR WORK COMMISSION
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(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy..” (my emphasis added)
[5] Section 396 says as follows:
“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;
(c) whether the dismissal was consistent with the Small Business Fair
Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy..” (my
emphasis added)
[6] As is made clear from the above provisions of the Act I must determine whether the
termination of the Applicant was a genuine redundancy before considering the merits.
[7] Section 389 provides as follows:
“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.”
[2013] FWC 2485
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Did the Applicant’s employer no longer require the Applicant’s job to be performed by
anyone because of operational requirements of the employer’s enterprise?
[8] The Applicant says that at a meeting at the Cairns TAFE College between Mr
Richardson and herself which she believed occurred on Friday afternoon 28 September 20123
he said to her that he wanted to sack her because of her complaint concerning living away
from home allowance, and later he put an offer to her to settle the complaint. She claimed
this was said as part of a conversation that lasted for about an hour.4 She later said he
probably used the word dismiss rather than sack.5
[9] The Applicant said that after considering the offer over the weekend she advised Mr
Richardson on the following Tuesday 2 October that she declined the offer. The Applicant
was subsequently dismissed on 10 December. She accepted that after the conversation on the
Friday afternoon she returned to work for another hour that day and also worked the next
day.6 She also said she worked on the days after 2 October up to the day of her termination.
The Applicant claimed Mr Richardson came to site on 2 October to bring some paint to the
job site and pulled her aside and said something to the effect that the dye had been cast.7
[10] The Applicant accepted that another employee Mr James Scott had been made
redundant a few days before her. She also accepted that Mr Wayne Dunne and Mr James
Furez had also left the employment of the Respondent around this time.8
[11] The Respondent argued that the redundancy was based on a lack of work in the
depressed construction industry in Cairns. The Respondent relied on a range of material to
support this claim. The termination letter9 provided to the Applicant on 10 October 2012 said
the following:
“Dear Felicity
Re: Employment
Due to the decrease in work load and the dim prospects of anything forthcoming I am
forced to let people go. I have already let 2 people go this week and will be finishing up
another person on Friday 12th October 2012.
With regards to yourself I have found you work with Dan Vella. I have spoken with him
and he has told me he will take you on. There is not much more I can do other than that.
You will be paid up to and including Wednesday 10th October 2012 along with 2 days
notice. Your last day with Prestige Painting Services will be close of business on
Wednesday 10th October 2012.
I suggest you contact Dan Vella on Ph 0439 703 533 as soon as possible. It is entirely up
to you to pursue the offer and follow up the arrangement I have put in place for you...”
[12] A Profit and Loss Statement for October 201210 was tendered indicating the
Respondent made a loss of $2,211.29 for that month. Customer sales records for the
Respondent for the period 21 September 2012 through to 1 November 2012 indicated a
[2013] FWC 2485
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reduction in sales during that period.11 Mr Richardson stated that costs were exceeding
income at the time the Applicant was terminated.12
[13] The Respondent also produced two reports described as “roll call reports”,13 one dated
3 October 2012 and one dated 20 February 2013 that Mr Richardson said itemised jobs and
hours in order to do figures on how successfully jobs work.14
[14] The roll calls15 comparing staffing in the week of 3 October and the week of 20
February 2013 indicated there were 28 employed by the Respondent at the earlier of the two
weeks and 15 at the later. It is not contested that Scott James another employee of the
Respondent was made redundant on 3 October 2012.16
[15] The evidence of Mr Richardson was that Mr Conrad relocated from Darwin to Cairns
and that a range of other employees who are named on the October list but who do not appear
in the February list left of their own accord. It appeared evident that some employees were
not made redundant by the Respondent however, if not engaged as permanent weekly
employees, take time off on an unpaid basis from time to time to reduce operating costs for
the Respondent.17 Mr Brooker gave evidence concerning a range of employees who had been
engaged by the Respondent and left employment with the Respondent of their own accord.18
[16] Three graphs19 were produced by the Respondent, the first indicating ‘Total
Employees On-Site Per Week 26/9/12 to 7/11/12” which claimed the number had fallen from
29 at the start of the period to 12 around 1 November 2012 and back up to 14 by 7 November
2012.
[17] The second, “Total Worker Hours 26/9/12 to 7/11/12” indicated around 1200 hours at
the beginning of the period dipping to just over 400 hours around 1 November 2012 climbing
back up to over 500 hours around 7 November 2012.
[18] The third graph “Invoiced Sales On All jobs 21 September 2012 to 1 November 2012”
again indicated a significant fall from the later part of September to early October with some
recovery in early October and a further fall in mid October 2012. The Respondent also
tendered records of employee’s weekly time sheets.20
[19] The Respondent also tendered a document titled “Cairns Watch April 2013” authored
by property advisors Herron Todd White, and specifically a graph in that document indicating
a decline in building approvals in Cairns.21
[20] Mr Richardson gave evidence that the downturn in work was very real in Cairns and
that was the reason he had sought work in Darwin.22 He gave evidence that the business has
“constricted”, from “...an average of say 30/35 painters to I think at the moment I’m running
11 or 12.”23
[21] The Applicant challenged the proposition that the Respondent was suffering a
downturn in Cairns on a number of grounds, including that only James Scott and herself had
been let go.
[22] The Applicant raised the case of work performed by the Respondent for Pillow Talk
and James Cook University (JCU) and a number of other sites to indicate the Respondent’s
employees in Cairns were receiving regular and systematic work. In the case of JCU the
[2013] FWC 2485
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Applicant said two employees Mr Johnson and Mr Jones worked at the site for a period of
three weeks doing 40 hour weeks. Mr Richardson responded that the point was he didn’t
have enough work to continue to employ the Applicant as well.24 Mr Richardson gave
evidence that the work of a painting contractor is intermittent on projects depending on the
builder who is in control of the project.25
[23] Mr Robert McNee, who had been employed by the Respondent as a Foreman since
1995 gave evidence that supported the claim that the business was suffering a downturn. He
said at times the business has been struggling to place employees from day to day. He said
Mr Richardson had raised concerns with employees in early October 2012 that ongoing work
was so scarce that they may have to consider working a four day week.26
[24] Mr McNee also gave evidence about a dinner in Darwin at the Parap Hotel attended by
the Applicant, Mr Conrad Brooker, Mr Richardson and himself during which discussions
occurred at length concerning the downturn in the industry in Cairns and that some workers
may have to be let go.27 The Applicant agreed she attended the dinner but denied that these
discussions occurred.28
[25] Mr Tony Singleton, another employee of the Respondent since June 2009 also gave
evidence that Mr Richardson had expressed to staff on numerous occasions that workload was
on a downturn, and the Respondent had always informed employees what the next job is or
how far away it is. Mr Singleton also said Mr Richardson had informed employees there
would be layoffs, and that while he was working in Darwin Mr Richardson had advised that
Cairns was slow and he may not be able to keep us all on.29
[26] Mr John Johnson also gave evidence that Mr Richardson had given advance warning
to employees that he was attempting to secure more work but if he could not there would be
layoffs.30
[27] The Applicant denied Mr Richardson had discussed what work was coming up at
meetings.31 Mr Brooker also contradicted the evidence of other employees saying he could
not remember discussion of a downturn in work.32
[28] I accept the evidence of the Respondent that the nature of the work of the Respondent
can be intermittent and in circumstances during periods where the Respondent has been
unsuccessful in winning a given proportion of tenders for work its workforce will necessarily
contract. The evidence satisfies me that was in fact occurring at the relevant time when the
Applicant was terminated.
[29] The Applicant conceded that she had not held a driver’s licence for some time prior to
her termination. The Respondent indicated that one of the reasons that the Applicant was
selected over other employees for termination was the fact that she did not have a driver’s
licence. Mr Richardson gave evidence that the day he visited the Kewarra Beach site the
Applicant arrived an hour and half late.33
[30] He said as the workforce constricted her requirement to be picked up and dropped off
did not provide the flexibility required because people had to move around too much.34 Mr
Singleton gave evidence that the Applicant had difficulty getting from job site to job site and
relied on others for transport.35
[2013] FWC 2485
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[31] The Respondent also claimed that the Applicant had taken 62 sick days in the last 13
months. Mr Richardson conceded this number could have included holidays. He said the
Applicant’s reliability was not an issue. On the basis that there was minimal evidence on this
point I will regard it as a neutral issue.36
[32] Mr Richardson gave evidence that due to how the business was trading he decided to
let someone go and selected the Applicant for the reasons set out above. He was aware there
may be some sensitivity due to the circumstances of the Applicant having made a complaint.
He said the following in his statement:
“..From the outset I believe I have acted in good faith with regards to Felicity. I
approached Dean Cameron prior to ask him his advice. My exact words were I know this
does not look good considering her action against me but that I genuinely need to let
people go. We discussed the issue and he agreed that the downturn in work was common
knowledge and as long as I made every effort to find Felicity employment I should do
whatever I needed to do to effectively run my business. I did find her employment but she
chose for whatever reason not to contact the future employer being Dan Vella.”37
[33] In his oral evidence besides saying he contacted Mr Cameron Dean at the QMBA, he
also said he spoke to his wife who contacted the FWA (to which I understood he was referring
to the FWO) and he instructed the QMBA to do the same on his behalf.38
[34] The termination letter itself dated 10 October 2012 stated:
“Due to decrease in work load and the dim prospects of anything forthcoming I am
forced to let people go. I have already let 2 people go this week and will be finishing
up another person on Friday 12 October 2012...”
[35] The Applicant took issue with Mr Richardson’s claim that he had “let people go”.
There is no dispute that the Respondent did terminate James Scott on 3 October. It became
clear in evidence that other employees who left the Respondent’s employment around that
time including Geoff Dunne and Jason Furze did so of their own accord rather than at the
initiative of the Respondent as the expression, “let go” would imply. However that does not
alter the fact that the Respondent’s workforce was shrinking which is consistent with Mr
Richardson’s explanation for the Applicant’s termination.
[36] Based on all the evidence that I have referred to above concerning the state of the
employer’s business as at 10 October 2012 I am satisfied that the requirements of s.389(1)(a)
have been satisfied in that the Respondent no longer required the Applicant’s job to be done
by anyone because of changes in the Respondent’s operational requirements.
Did the Respondent comply with any obligations in a modern award or enterprise
agreement that applied to the employment to consult about redundancy?
[37] There appeared to be no dispute that the Applicant was covered by the Building and
Construction General On-site Award 2010 (the Award). Clause 10 of the Award provides as
follows:
“10. Types of employment
[2013] FWC 2485
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10.1 Employees under this award will be employed in one of the following
categories:
(a) daily hire employees;
(b) full-time weekly hire employees;
(c) part-time weekly hire employees; or
(d) casual employees.
10.2 At the time of engagement an employer will inform each employee, in writing, of
the terms of their engagement and, in particular, whether they are to be daily
hire, full-time, part-time or casual employees.”
[38] Clause 11 and 12 of the Award provide as follows:
“11. Daily hire employees
A daily hire employee means a tradesperson or labourer engaged subject to the
following provisions:
11.1 One day’s notice of termination of employment will be given on either side or
one day’s pay will be paid or forfeited.
11.2 Notice given at or before the usual starting time of any ordinary working day
will expire at the completion of that day’s work.
11.3 A tradesperson will be allowed one hour prior to termination to gather,
clean, sharpen, pack and transport tools.
11.4 Nothing in this clause will affect the right of an employer to dismiss an
employee without notice for misconduct or refusing duty.
12. Full-time weekly hire employment
A full-time employee is an employee who works an average of 38 ordinary hours per
week.”
[39] Clause 14 of the Award provides as follows:
14. Casual employment
14.1 A casual employee is one engaged and paid in accordance with the
provisions of this clause.
14.2 A casual employee is entitled to all of the applicable rates and conditions of
employment prescribed by this award except annual leave, paid
personal/carer’s leave, paid community service leave, notice of termination
and redundancy benefits.
14.3 An employer, when engaging a person for casual employment, must inform
the employee, in writing, that the employee is to be employed as a casual,
[2013] FWC 2485
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stating by whom the employee is employed, the job to be performed, the
classification level, the actual or likely number of hours to be worked, and the
relevant rate of pay.
14.4 A casual employee is entitled to payment for a minimum of four hours’ work
per engagement, plus the relevant fares and travel allowance and expenses
prescribed by clauses 24-Living away from home-distant work and 25-Fares
and travel patterns allowance on each occasion they are required to attend
work.
14.5 A casual employee must be paid a casual loading of 25% for ordinary hours
as provided for in this award. The casual loading is paid as compensation for
annual leave, personal/carer’s leave, community service leave, notice of
termination and redundancy benefits and public holidays not worked.
14.6 A casual employee required to work overtime or weekend work will be
entitled to the relevant penalty rates prescribed by clauses 36-Overtime, and
37-Penalty rates, provided that:
(a) where the relevant penalty rate is time and a half, the employee must be
paid 175% of the hourly rate prescribed for the employee’s classification;
and
(b) where the relevant penalty rate is double time, the employee must be paid
225% of the hourly rate prescribed for the employee’s classification.
14.7 A casual employee required to work on a public holiday prescribed by the
NES must be paid 275% of the hourly rate prescribed for the employee’s
classification.
[40] Section 123 of the Act 2009 provides as follows: (my underlining added).
“Subdivision C—Limits on scope of this Division
123 Limits on scope of this Division
Employees not covered by this Division
(1) This Division does not apply to any of the following employees:
(a) an employee employed for a specified period of time, for a
specified task, or for the duration of a specified season;
(b) an employee whose employment is terminated because of
serious misconduct;
(c) a casual employee;
(d) an employee (other than an apprentice) to whom a training
arrangement applies and whose employment is for a specified
[2013] FWC 2485
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period of time or is, for any reason, limited to the duration of
the training arrangement;
(e) an employee prescribed by the regulations as an employee to
whom this Division does not apply.
(2) Paragraph (1)(a) does not prevent this Division from applying to an
employee if a substantial reason for employing the employee as
described in that paragraph was to avoid the application of this
Division.
Other employees not covered by notice of termination provisions
(3) Subdivision A does not apply to:
(b) a daily hire employee working in the building and
construction industry (including working in connection with the
erection, repair, renovation, maintenance, ornamentation or
demolition of buildings or structures); or
(c) a daily hire employee working in the meat industry in
connection with the slaughter of livestock; or
(d) a weekly hire employee working in connection with the
meat industry and whose termination of employment is
determined solely by seasonal factors; or
(e) an employee prescribed by the regulations as an employee to
whom that Subdivision does not apply...”
[41] The Respondent asserted that the Applicant was a casual employee while the
Applicant maintained she was a full time permanent employee. It is generally accepted casual
employees are engaged by the hour whilst the Award provides for one day's notice of
termination of employment in the case of daily hire employees.
[42] There is clear evidence that a number of employees of the Respondent were permanent
weekly employees who received paid leave and other entitlements consistent with an
engagement of that nature. The nature of the Applicant’s engagement did not fall into a
category of full time weekly hire as defined in clause 12 of the Award. The Applicant gave
the following evidence:
“...I have worked for Bill on and off and I’ve only ever ceased work because of a
shortage of work, never of my own choosing, I have never in the past been offered
redeployment to anybody.” 39; and further,
“...I did find it strange that I have been dismissed, let go, probably four or five times
over the last four years, and this is the first time ever I have been offered
redeployment.”40
[2013] FWC 2485
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[43] The Applicant said in material attached to her originating application:
“Commonly if things get slow Bill may ask you to have a few days off or even a week
or so. This happens with all Prestige Painters, from time to time...”
[44] In other reference material attached to the originating application under a heading
“overview” the Applicant said:
“All up throughout my employment with Bill I have been laid off approximately six
times, due to shortage of work.”
[45] The Applicant also said in closing submissions that her last working day in Darwin
was 7 September 2012 and she arrived back in Cairns on 10 September 2012. She then had
time off between 11 September and 20 September before starting back at the Cairns TAFE on
Monday 22 September 2012.
[46] Whilst I am satisfied the Applicant’s employment could be regarded as regular and
systematic such that she would meet the requirements of s.384 of the Act in order for her to be
entitled to bring this application in circumstances where she was a casual, there is no evidence
that the Applicant accrued entitlements such as annual leave or personal leave as either a full
time weekly hire employee, or daily hire employee would be entitled to do under the Award.
[47] I am satisfied on the basis of the material before me that the engagement was as a
casual employee. The history of the employment relationship between the Applicant and
Respondent featured stops and starts consistent with the possibility it could be daily hire
engagement, however the evidence of the Respondent concerning its understanding, in
combination with the method of payment indicates a casual and not a daily hire engagement.
[48] On that basis I have found that the Applicant was not entitled to the notice period that
a daily hire employee would be entitled to of one day despite the Applicant paying two days
notice. Even if I am wrong and the Applicant was a daily hire employee I am satisfied the
Respondent has complied with the consultation requirements to discuss the changes as
required by clause 8 of the Award.
[49] I am of this view as there was considerable evidence to the effect that Mr Richardson
had been raising with employees the prospect of layoffs for some time before the terminations
in early October, including that of the Applicant. This conclusion is supported by the
evidence of Mr Richardson, Mr McNee, Mr Singleton and Mr Johnson. To the extent that
there was inconsistency between the evidence of these four witnesses and the Applicant and
Mr Brooker on whether the layoffs were discussed with employees I think it is more probable
that the evidence of the witnesses for the Respondent is correct as their evidence was clear
and consistent on the point, whereas Mr Brooker stated he could not recall such discussions
and the Applicant was alone in assertively contradicting the claim.
[50] Further the Respondent took active steps in keeping with the intent of clause 8 of the
Award by attempting to mitigate the adverse effects of termination on the Applicant by
speaking to Mr Dan Vella who is also a painting contractor in the Cairns area. Mr
Richardson advised Mr Vella that he had an employee he had to let go and asked him if he
was hiring employees at that time to which Mr Vella replied yes. Mr Richardson said he
[2013] FWC 2485
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advised Mr Vella the Applicant was a good worker and he claimed he said to Mr Vella “I will
let her know and it will be up to her to contact you.”41
[51] Mr Richardson said at the time he gave the Applicant the termination letter he said the
following in the context of the Applicant’s complaint to the FWBC:
“I suggested to you at that stage, if I were you I wouldn’t mention anything to Dan
Vella because I don’t think any employer would want to know this information as it may
scare them off and that is what I said.”42
[52] While the Applicant interpreted this to mean Mr Richardson did not want to continue
to employ her because of the complaint, it could just as equally have been a case of Mr
Richardson attempting to prevent the Applicant from raising an issue with Mr Vella that may
cause him to hesitate about offering employment to the Applicant.
[53] Mr Richardson gave evidence that the nature of his relationship with Mr Vella was
that even though they competed against each other in the contract painting industry in Cairns,
if either had employees who may no longer be able to be employed they would contact each
other to see if they have available work at that time.43 Mr Vella confirmed this was the case.44
Mr John Johnson also gave evidence that it was his experience that Mr Richardson tried to
find employment for employees he had to let go.45
[54] Mr Vella gave evidence that his company had operated since 2007 in the Cairns area
and currently engaged 15 employees. His evidence was consistent with that of Mr Richardson
in that he said Mr Richardson approached him on 8 October 2012 and requested if he could
offer a start to a number of experienced painters and he referred to the Applicant by name.
Mr Vella said Mr Richardson only made positive comments about the Applicant and was
genuinely seeking employment for her and other staff. He said the Applicant had never
contacted him. He said he commenced a number of staff in mid-October 2012 who remained
engaged by him and he would have employed the Applicant had she contacted him.46
[55] Mr Vella also confirmed he wrote correspondence dated 12 December 2012
concerning his conversation with Mr Richardson on 8 October 201247 and sent email
correspondence to the QMBA on 16 April advising that his company had 13 painters working
for the company, 9 on PAYG arrangements and the others as contractors.48
[56] Mr Vella said that it was his preference to engage painters on PAYG. His starting
hourly rate was $26.49 The Applicant accepted that Mr Richardson told her on 10 October
that he had arranged for her to work with Mr Dan Vella and the telephone number for Mr
Vella was on the termination letter.50
[57] The Applicant said she did not contact Mr Vella because she was not consulted about
it beforehand, and also she thought she would have to work as a contractor and not an
employee.51 She later accepted that this was only an assumption on her part.52 The Applicant
agreed she received correspondence53 from the QMBA54 dated 13 December 2012 attaching
correspondence from Mr Vella.55 The QMBA correspondence asserted to the Applicant that,
among other things, she had not acted reasonably in seeking to mitigate her loss including not
accepting the alternative employment offered to her. She also accepted that it had been
clarified to her more recently that the Vellacorp offer of employment was for PAYG work but
she still did not seek to contact Vellacorp.56
[2013] FWC 2485
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[58] The Applicant made the point in closing submissions that when work had not been
available in the past no attempts to find alternative work with another employer had been
made by the Respondent. She believed the reason the Respondent contacted Mr Vella on this
occasion was motivated by the possibility of her bringing an unfair dismissal application. The
Applicant accepted she was paid two days in lieu of notice.57
[59] It may well be the case that Mr Richardson did go to greater lengths to attempt to
mitigate the effects of the termination on the Applicant out of a fear that she may seek to
contest her termination on the basis that she believed it was connected to her complaint to the
FWBC. However whether that is the case or not, I am satisfied that the Respondent complied
with its obligations under the Award that applied to the Applicant’s employment to consult
about her termination.
Was it 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 ?
[60] There was no compelling evidence led to suggest any redeployment options were
available within the employer’s enterprise or any associated entity of the employer. The
evidence that was led would indicate no such options were available. On that basis I am
satisfied the termination was not genuine redundancy for any reason related to s.389(2).
CONCLUSION
[61] As stated above, having concluded that this is a case of genuine redundancy I am
unable to go on to consider the merits of the Applicant’s case. The Applicant has always
asserted that her termination was because of her complaint to the FWBC. I agree with the
submission of the Respondent and its reference to the Fair Work Bill 2008 Explanatory
Memorandum for the purpose of its argument that in circumstances where genuine
redundancy can be established the reasons for selection cannot be pressed to continue to argue
a termination was unfair. The Explanatory Memorandum includes at paragraph 1553 the
following:
“1553 Whether a dismissal is a genuine redundancy does not go to the process for
selecting individual employees for redundancy. However, if the reason a person is
selected for redundancy is one of the prohibited reasons covered by the general
protections in Part 3-1 then the person will be able to bring an action under that Part in
relation to the dismissal.”
[62] While the Applicant would no doubt have preferred this decision deal with her
contention regarding her complaint to the FWBC I do not intend to do so in the
circumstances. I note however during the conduct of the case the Respondent provided
evidence concerning its reasons for selecting the Applicant that could equally have answered
her claims had I been required to do deal with them. For all of the reasons set out above the
application must be dismissed and I order accordingly.
[2013] FWC 2485
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COMMISSIONER
Appearances:
Ms Klavs appeared on her own behalf.
Mr D Cameron for the Respondent.
Hearing details:
2013.
Cairns:
24 April.
Printed by authority of the Commonwealth Government Printer
Price code C, PR535940
1 PR535890
2 Transcript dated 24 April 2013 at PN1187.
3 Transcript dated 24 April 2013 at PN983.
4 Transcript dated 24 April 2013 at PN978.
5 Transcript dated 24 April 2013 at PN993.
6 Transcript dated 24 April 2013 at PN1007-1008.
7 Transcript dated 24 April 2013 at PN1014.
8Transcript dated 24 April 2013 at PN972.
9 Exhibit 2.
10 Exhibit 3.
11 Exhibit 5.
[2013] FWC 2485
14
12 Exhibit 447.
13 Exhibit 6.
14 Transcript dated 24 April 2013 at PN235.
15 Exhibit 6.
16 Transcript dated 24 April 2013 at PN340.
17 Transcript dated 24 April 2013 at PN475-496.
18 Transcript dated 24 April 2013 at PN1218-1232.
19 Exhibit 7.
20 Exhibit 8.
21 Exhibit 9.
22 Transcript dated 24 April 2013 at PN267.
23 Transcript dated 24 April 2013 at PN352.
24 Transcript dated 24 April 2013 at PN384.
25 Transcript dated 24 April 2013 at PN291.
26 Exhibit 10 at paragraph 3.
27 Transcript dated 24 April 2013 at PN933-936.
28 Transcript dated 24 April 2013 at PN1034.
29 Exhibit 12 at paragraph 3.
30 Exhibit 13 at paragraph 3.
31Transcript dated 24 April 2013 at PN1035.
32 Transcript dated 24 April 2013 at PN1237.
33 Transcript dated 24 April 2013 at PN345 and PN500.
34 Transcript dated 24 April 2013 at PN500.
35 Exhibit 12 at paragraph 4.
36 Transcript dated 24 April 2013 at PN311.
37 Exhibit 1 at paragraph 2.
38 Transcript dated 24 April 2013 at PN546-560.
39 Transcript dated 24 April 2013 at PN1171.
40 Transcript dated 24 April 2013 at PN1177.
41 Transcript dated 24 April 2013 at PN302.
42 Transcript dated 24 April 2013 at PN315.
43 Transcript dated 24 April 2013 at PN466-471.
44 Transcript dated 24 April 2013 at PN831-832.
45 Exhibit 13 at paragraph 4 and Transcript dated 24 April 2013 at PN743.
46 Exhibit 14 and Transcript dated 24 April 2013 at PN835-844.
47 Exhibit 15.
48 Exhibit 16.
49 Transcript dated 24 April 2013 at PN846-848.
50 Transcript dated 24 April 2013 at PN1080-1082.
51 Transcript dated 24 April 2013 at PN1089-1090.
52 Transcript dated 24 April 2013 at PN1093 and at PN1105.
53 Transcript dated 24 April 2013 at PN1155-1156.
54 Exhibit 18.
55 Exhibit 15.
56 Transcript dated 24 April 2013 at PN1183.
57 Transcript dated 24 April 2013 at PN1097.
