TERMINATION OF EMPLOYMENT – demotion – s.394 Fair Work Act 2009 – application for an unfair dismissal remedy – respondent raised jurisdiction objection that applicant was not dismissed – applicant argued that respondent materially altered contract of employment by announcing a decision to demote him – applicant promoted to leading hand position – respondent removed applicant from leading hand position due to alleged poor performance – applicant argued employment terminated on the respondent’s initiative due to demotion and absence of the respondent to offer shifts – respondent argued made no decision to dismiss applicant – did not intend to end the employment relationship – Commission found removing contractual right to be employed as a leading hand and absence of any action by the respondent to offer shifts was removal of fundamental right in contract of employment – applicant’s contract of employment was therefore repudiated by respondent – Commission found dismissal was on the respondent’s initiative when applicant was advised that he would be removed from position as leading hand – concerns held by respondent with performance issues – Commission found performance issues warranted counselling or warning – no valid reason for dismissal – dismissal was harsh, unjust or unreasonable – reinstatement not appropriate in the circumstances – ordered compensation of $2,230.76 taxed according to law and an amount of $211.92 into superannuation fund. Whitfield v Master Tree Ninja t/a Tree Ninja/Adelaide Palm Tree Removal
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