s.394 - Application for unfair dismissal remedy

Applications for unfair dismissal remedies - whether remedy available - whether dismissals unfair - genuine redundancies - applicants and respondent failed to appear - limited evidence - applications dismissed

• [1] The applicants in these matters, Mr. Juan Manuel Luiz Andrada and Mr. Mitch Cruz (together, the Applicants), were formerly employed by Kognitiv Australia Pty Ltd (Respondent). The employment of each of the Applicants was summarily terminated by the Respondent on 22 November 2024. The Applicants have sought a remedy for unfair dismissal against the Respondent under Part 3-2 of the Fair Work Act 2009 (Cth) (Act). I note however that in the case of Mr. Cruz at least, the application seems primarily directed towards the recovery of accrued entitlements which Mr. Cruz says were owing but not paid upon the termination of his employment.

• [2] The matter was listed to be heard on 17 March 2025. The Respondent failed to file any material in response to earlier directions and did not appear at the hearing. The Applicants filed some documentation prior to the hearing but failed to attend the hearing.

• [3] According to the available material the Applicants were terminated by correspondence dated 21 November 2024 (received on 22 November 2024) which advised that as a result of unforeseen delays in finalising the sale of the Respondent's Enterprise Loyalty Business, the financial position of the Respondent had become untenable and that an immediate reduction in the size of the Respondent's workforce was necessary. By the terms of the notices, the termination of the Applicants' employment took immediate effect.

When can the Commission order a remedy for unfair dismissal?

• [4] Section 390 of the Act provides that the Fair Work Commission (Commission) may order a person's reinstatement, or the payment of compensation to a person if satisfied that the person was protected from unfair dismissal and has been unfairly dismissed. On the basis of the evidence provided by the Applicants as to their earnings I am satisfied that the Applicants are persons who are protected from unfair dismissal[1] under the Act. I am also satisfied that the applications were made within the requisite time period after the dismissal took effect on 22 November 2024.

• [5] In order to determine whether the dismissals were unfair I need to be satisfied that the Applicants were dismissed, that the dismissals were harsh, unjust or unreasonable, that the dismissals were not consistent with the Small Business Fair Dismissal Code and the dismissals were not a case of genuine redundancy.[2] Mr. Ruiz provided a copy of the letter of termination. Mr. Cruz provided a statement to indicate he received written notice in similar terms. The termination notices establish that the employment of the Applicants was terminated on the employer's initiative.[3] The evidence indicates that the terminations related to the economic circumstances of the Respondent rather than the conduct or capacity of the Applicants. In that case the Small Business Fair Dismissal Code has no application.[4]

• [6] An issue arises as to whether the terminations were a case of genuine redundancy. Section 396(d) requires me to decide whether the dismissal was a case of genuine redundancy before I consider the merits of the application.

• [7] Section 389 sets out the meaning of genuine redundancy for the purposes of Part 3-2 of the Act. It provides:

(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:

(b) the enterprise of an associated entity of the employer.

• [8] Prima facie, the evidence I have relating to the notices of termination indicates that the terminations occurred because the employer no longer required the Applicants' jobs to be performed by anyone because of changes in the operational requirements of the employer's enterprise. I conclude that to be the case.

• [9] Neither Applicant provided any evidence to indicate that the terms of a modern award or enterprise agreement applied to their employment or that the Respondent complied or failed to comply with an obligation to consult about redundancy under the terms of such an instrument. In the absence of evidence about the existence of an obligation of that kind, the question of compliance with an obligation to consult about redundancy does not arise. Nor was there any evidence from the Applicants to show that it would have been reasonable in all the circumstances for them to be redeployed with the Respondent's enterprise or the enterprise of an associated entity of the Respondent. I therefore conclude that the dismissal of the Applicants was a case of genuine redundancy within the meaning of s.389 of the Act. In that case it is unnecessary for me to consider whether the dismissals were harsh, unjust or unreasonable and I cannot be satisfied that the Applicants have been unfairly dismissed.[5]

No appearances for the Applicants or the Respondent.

By Video using Microsoft Teams at 10:00am AEDT on Monday, 17 March 2025.

[4] Iannello v. Motor Solutions Australia Pty Ltd [2010] FWA 3125.

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