An employer was recently found by the Fair Work Commission (FWC) to be in breach of unfair dismissal and was ordered to pay $69,089 in compensation. The FWC ruled that the redundancy was unsubstantiated and found the dismissal was likely due to unsatisfactory performance.
Our Employee Relations Advice Centre team has provided a summary of the case [Michael Vonja v Adcon Resources Vic Pty Ltd [2023] FWC 3399].
Applicant’s submission
The applicant was working as a site foreman on a construction site and claimed they were instantly dismissed off the site for alleged unsatisfactory performance and consequently turned to the FWC to seek compensation.
They provided evidence to show their role was still required on site and was an integral part of the construction project. They also stated there was no consideration of redeployment or consultation regarding performance or conduct prior to the dismissal.
Employer’s response
The employer alleged the dismissal was a genuine redundancy and that the business was downsizing within the next six months.
Considerations and findings
However, the FWC found the dismissal did not meet the definition of a genuine redundancy in Section 389(1) of the Fair Work Act, which states the job is no longer required to be performed by anyone.
On the morning of the dismissal, with no prior notice, the construction manager called the employee and explained that he was not managing the worksite to the desired standard and was therefore instantly dismissed.
The FWC found there was no valid reason for the dismissal or procedural fairness present, according to Section 387 of the Act.
The facts of the case leading to this decision included no of evidence that the employee was notified of their poor performance, as no previous warnings, discussions or meetings with the employee had occurred. The employer also failed to provide the employee the right of response to termination and unreasonably refused the employee a support person by declining an off-site discussion where the employee asked for a union representative to attend.
For these reasons, the FWC held that the employer was in breach of unfair dismissal and was ordered to pay a total of $69,089 in compensation.
Has this article raised some questions? Our Employee Relations Advice Centre is available on (08) 9365 7660, or via [email protected].
