s.394 - Unfair dismissal

Application for unfair dismissal remedy - application for summary dismissal of proceedings - application, for summary dismissal, dismissed

• [1] The Respondent in the substantive proceedings has applied to the Commission to dismiss the substantive application.[1] It has done so on the basis that it says the substantive application is "without merit." [2] The Commission can dismiss an application because it has no reasonable prospects of success.[3] The Respondent has not specifically identified this ground. The Respondent is self-represented; I discern from its reference to the application being "without merit" that the application is made in reliance on this power.
• [2] The substantive Applicant Ms Wang applied to the Commission for an unfair dismissal remedy. She claims that she was unfairly dismissed. The Respondent says she was not unfairly dismissed, and that the dismissal came about because of a genuine redundancy.
• [3] For the reasons below I have decided not to dismiss the substantive application for an unfair dismissal remedy. I have decided to dismiss the Respondent's application for the substantive application to be summarily dismissed.

• [4] Ms Wang's application states she commenced her employment in 2014.[4] The Learner Centre Pty Ltd (the Learner Centre) says her current employment commenced in 2015.[5]
• [5] It appears to be common ground that Ms Wang was the General Manager at the time of her dismissal.
• [6] Ms Wang's application gives her termination date as 9 August[6] and the Learner Centre's response states that it was 8 August.
• [7] Ms Wang filed the substantive application, that commenced these proceedings, on 22 August 2024.
• [8] Ms Wang filed her witness statements and written submissions on 2 December 2024. The Learner Centre filed their materials in response on 18 December 2024. Ms Wang filed her reply materials on 3 January 2025.
• [9] The Respondent filed this summary dismissal application on 17 January 2025. I directed the parties to file written submissions and any affidavits in relation to this application. The Learner Centre provided its submissions, an unsworn statement from the CEO of a human resources consultancy, and some documents on 28 January 2025. Ms Wang did not provide any response, and naturally in that circumstance the Learner Centre did not file materials in reply.

Section 587 of the Fair Work Act 2009 Cth ("the Fair Work Act") provides:

587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

...

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

• [10] The power to dismiss should be exercised with caution.[7] Caution is required because the effect of such an order is to extinguish an applicant's right to have their substantive application heard and determined by the Commission.[8]
• [11] Ms Wang's substantive application is an application for an unfair dismissal remedy made under section 394 of the Fair Work Act. For reasons discussed below, the application will turn on whether her dismissal was because of genuine redundancy, and, if not, whether it was harsh, unjust or unreasonable.
• [12] "Genuine redundancy" has a particular meaning in this context. Section 389 of the Fair Work Act 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.

• [13] If the dismissal was for genuine redundancy, it cannot be an unfair dismissal and the application will fail.[9] If the Learner Centre is unable to establish that it met all of the requirements of section 389, then the question of whether the dismissal was harsh, unjust, or unreasonable can be considered. Section 387 of the Fair Work Act sets out criteria to be taken into account.

• [14] The Learner Centre provided submissions in support of its application for summary dismissal. Those submissions go to the Learner Centre's case that the dismissal was for genuine redundancy.[10]

• [15] It is not in dispute between the parties that Ms Wang was an employee and had completed a minimum employment period. The Respondent has not contended that Ms Wang's income exceeded the high income threshold. Accordingly, it does not appear to be in dispute that Ms Wang was a person protected from unfair dismissal, having regard to section 385 of the Fair Work Act 2009 (Cth) (the Fair Work Act).
• [16] It is not in dispute that the application was made in the time period allowed under subsection 394(2) of the Fair Work Act. It is not in dispute that the Respondent employed well over fifteen employees at all material times. So, no issue arises as to the Small Business Fair Dismissal Code.[11] It is not in dispute that Ms Wang was dismissed.
• [17] The issues are confined to whether this was a case of genuine redundancy, if not, whether the dismissal was harsh, unjust, or unreasonable, and, if so, what, if any, remedies should be ordered.
• [18] As to genuine redundancy, Ms Wang has argued that she was not dismissed because of operational requirements, or that if she was, the Learner Centre failed to consult as required and failed to explore redeployment options.
• [19] Ms Wang argues that the Learner Centre had an obligation to consult her which it failed to meet. In her submissions filed on 2 December 2024 assert that the Learner Centre "failed to consult with me before deciding to terminate my employment, violating the Fair Work Act's requirement for meaningful consultation."[12] She has not pointed to any award or enterprise agreement giving rise to consultation rights, and the Respondent's response says that no such instrument applied to Ms Wang's employment.[13]
• [20] The parties are in dispute about whether Ms Wang could reasonably have been redeployed. Ms Wang says her inquiries about redeployment were ignored or dismissed, and points to a new role created in July 2024.[14] The Learner Centre says there were no other alternative or suitable roles for her to be placed into at the Apex Training Institute.[15]
• [21] Ms Wang's argument about the reason for termination was first raised in her submissions in reply.[16] The Respondent has consistently indicated in its materials that the dismissal was because of its operational requirements.[17]
• [22] Ms Wang has also raised an issue about the Learner Centre's failure to meet redundancy pay obligations at the time of the dismissal.[18] This is not an issue covered by section 388 of the Fair Work Act. It may go to harshness, unjustness, or unreasonableness if the Respondent is not successful in establishing the employment ended because of genuine redundancy. As to the latter, the Learner Centre previously made an application to vary the amount of redundancy pay under section 120 of the Fair Work Act. They have since discontinued that application on the basis that they have been able to pay the full amount. It is not in dispute that the amount has been paid, or that it was paid late.
• [23] It appears clear that there is a contest between the parties as to whether the dismissal was for genuine redundancy. It is open to the Respondent to press this objection, and it is open to the Applicant to resist it. Having regard to the unsworn statements that have been filed, the documents annexed to them, and the parties' submissions, I am not in a position to find that Ms Wang has no reasonable prospects of resisting the Learner Centre's objection that the dismissal was for genuine redundancy, within the meaning of that term for the purposes of sections 385 and 388 of the Fair Work Act.
• [24] The parties are also in dispute about matters relevant to whether the dismissal was harsh, unjust or unreasonable. These matters include whether the reason for the dismissal was actually Ms Wang's performance, rather than the business's operational requirements, whether Ms Wang's mother's terminal illness was relevant to the question of harshness, and whether the failure to promptly pay the redundancy payment was genuinely attributable to financial constraints. I am not in a position to find that Ms Wang has no reasonable prospects of demonstrating that the dismissal was harsh, unjust, or unreasonable.
• [25] All of the contested matters can be ventilated at the hearing, supported by sworn evidence, which parties have the opportunity to test through cross-examination. After hearing the evidence, I may or may not find that the dismissal was one for genuine redundancy and dismiss the substantive application on that basis. If that objection is not made out, then it will also be necessary to determine the other issues in this matter. At this stage, though, without having had the benefit of that hearing process, I am not in a position to decide the issues of fact or to determine the questions to which they are relevant.
• [26] In light of the foregoing, I am not in a position to find that Ms Wang's application has no reasonable prospects of success.
• [27] The discretion to dismiss the proceedings, under section 587(1)(c), is not enlivened. Accordingly, the application for the proceedings to be summarily dismissed is dismissed. The matter can proceed to hearing and determination in the usual way.

• [28] The Learner Centre's application under section 587 of the Fair Work Act is dismissed.

[1] Application for summary dismissal filed 17 January 2025.

[3] Fair Work Act 2009 (Cth) s 587(1)(c).

[4] Application for unfair dismissal remedy filed 22 August 2024, 2.

[5] Employer response filed 19 September 2024, 3.

[6] Application for unfair dismissal remedy filed 22 August 2024, 2.

[7] Spencer v Commonwealth of Australia [2010] HCA 28; 241 CLR 118, [24] (French CJ and Gummow J); Mr Akash Sharma v VED Financial Services Pty Ltd [2024] FWCFB 282, [9]; Raschilla v Ausino West Pty Ltd [2017] FWCFB 5952.

[8] Mr Akash Sharma v VED Financial Services Pty Ltd [2024] FWCFB 282, [9].

[9] Fair Work Act 2009 (Cth) s 385.

[10] Respondent's submissions filed 28 January 2025.

[11] Fair Work Act 2009 (Cth) ss 385, 388 and 23.

[12] Applicant's outline of submissions filed 2 December 2024, 2.

[13] Employer response filed 19 September 2024, 3.

[14] Applicant's outline of submissions in reply filed 3 January 2025, 1.

[15] Witness statement of Preeti Ronil filed 18 December, 1.

[16] Applicant's outline of submissions in reply filed 3 January 2025, 1.

[17] Respondent's overview of submissions filed 18 December 2024, 1-2.

[18] Applicant's outline of submissions filed 2 December 2024, 3.

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