TERMINATION OF EMPLOYMENT – genuine redundancy – ss.389, 394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant employed as a full-time factory worker – notified by respondent that his position was being made redundant – applicant contended that his dismissal was unfair, primarily on the basis that his purported redundancy was not genuine and that he had been dismissed because of his insistence that he be paid in accordance with the relevant modern award – Commission accepted the evidence given by the applicant about his working hours and the way he was paid – in July 2016 the applicant made a formal complaint to the Fair Work Ombudsman’s office (FWO), who advised him to speak to the General Manager of the respondent about being paid in accordance with the award – the applicant said he spoke to the General Manager, who responded by saying ‘We are a small business we do not have to abide by the award but I will put you on as a casual employee’ – the General Manager did not deny this in his witness statement – versions of events of the applicant and the respondent diverge sharply in relation to the circumstances leading up to the dismissal and the true reasons for the dismissal – applicant submitted that the respondent offered him a pay increase of $1,000 per annum to, in effect, acquiesce in the existing pay arrangements and cease complaining about them – the applicant further submitted that he refused this offer and insisted on being paid according to the Award, and this led to him being abruptly dismissed a few days later – the respondent submitted that the cold pressing work which the applicant performed was declining, so it had offered him the $1,000 increase as an incentive to be retrained in the use of new equipment for the production of baked products which it had acquired – further submitting that the applicant had refused to be retrained, and accordingly the business had no choice but to dismiss him on the grounds of redundancy – Commission found that the $1,000 pay increase was offered to resolve the applicant’s complaints, including his complaint to the FWO, about his pay arrangements, and was not offered as an incentive for him to retrain – found that the real reasons for the dismissal were to dispose of the problem raised by the applicant’s pay complaints, and the difficulties which had arisen in the working relationship between the applicant and his supervisor – after requesting a separation certificate the applicant was advised by the respondent that ‘we are unable to provide a separation certificate as we are pursuing the perpetration of an alleged fraud and abandonment of your workplace which placed the business under undue hardship’ – Commission held that by this action, having dismissed the applicant from his employment, the respondent engaged in a malicious attempt to prejudice the applicant’s chances of obtaining Newstart benefits – found the suggestion of legal proceedings against the applicant for fraud was an outright falsehood as there were no such proceedings and was an attempt to intimidate the applicant – Commission found the dismissal was not a case of genuine redundancy – found the dismissal was not consistent with the Small Business Fair Dismissal Code – found no valid reason for the dismissal – dismissal was harsh, unjust and unreasonable and with no proper basis – reinstatement not appropriate – provisional view that compensation of $10,694.84 would be appropriate in all the circumstances – parties allowed a further opportunity to make written submissions on the issue of the quantification of compensation only. Garang v Byron Bay Superfoods P/L
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