Basketball coach asks about missing pay and is told he is sacked

What happened

Daniel Kerle started work at Basketball Tek Academy, trading as Basketballtek, on 25 January 2016. He was a basketball coach and administrative officer. He said his performance had always been exemplary and that he had never been counselled or warned.

On 16 October 2016 he noticed he had not been paid for the previous week, and emailed the general manager to ask why. When no reply came, he rang her the next morning. She called back later that morning and told him his employment had been terminated with immediate effect.

Mr Kerle asked for a letter. The letter he received that day said the business could not sustain his employment and was under significant financial pressure. It said he would be paid one week's notice with his entitlements. Mr Kerle said that on the same day, a co-worker who worked three hours a day as an assistant coach was offered a full-time position taking over his duties.

The claim, and an employer that stopped turning up

Mr Kerle filed an unfair dismissal application under s 394 of the Fair Work Act 2009 (Cth) on 25 October 2016, eight days after he was dismissed. In its response, Basketballtek objected that his dismissal was a genuine redundancy. That matters, because a person whose dismissal was a genuine redundancy cannot claim unfair dismissal at all.

Basketballtek then did not file its evidence. In January 2017 its representative wrote that the business had gone out of business, would be put into liquidation, and would not pursue its objection. When the matter was heard in Brisbane on 27 February 2017, Basketballtek did not appear, and Mr Kerle was the only party there.

Was it a genuine redundancy?

Even with no one opposing him, Commissioner Simpson still had to be satisfied the Commission had the power to hear the claim. That meant deciding the redundancy question.

Under s 389, a dismissal is a genuine redundancy only if two things are true. First, the employer no longer required the person's job to be performed by anyone because of changes in the operational requirements of its enterprise. Second, the employer complied with any obligation in a modern award or enterprise agreement to consult about the redundancy. And it is not a genuine redundancy if it would have been reasonable to redeploy the person elsewhere in the business or a related business. The Commissioner noted that each requirement must be satisfied, and that the onus was on Basketballtek.

Mr Kerle was covered by the Educational Services (Post-Secondary Education) Award 2010. Its consultation clause required an employer that had made a definite decision to make major changes, including terminations, to notify the affected employees, discuss the changes and ways to soften their effects, and give them relevant information in writing. On the evidence, Basketballtek had done none of that. The Commissioner found it clear that Basketballtek did not comply with its obligations to consult, so the dismissal could not be a genuine redundancy.

Why the dismissal was unfair

With the objection out of the way, the Commissioner turned to whether the dismissal was harsh, unjust or unreasonable. Section 387 lists the matters the Commission must weigh, starting with whether there was a valid reason.

Mr Kerle said there was no valid reason, and that he would have kept working until at least 9 December 2016, the end of the year for the course his students were enrolled in. The co-worker gave evidence and confirmed that he stayed in the full-time role until then. Mr Kerle also said that at two meetings with the parent company in the weeks before, no one mentioned any change to his job. Financial pressure might have been the reason, but Basketballtek had put no evidence of it before the Commission. The Commissioner was left only with assertions made before the hearing, and found there was not a valid reason for dismissal.

The process counted against the employer too. Mr Kerle first heard of his dismissal in a phone call telling him it took effect immediately, and he had no chance to respond or to bring a support person. The small business dismissal code did not help Basketballtek: although it had few employees, the Act counts associated entities as one, so it was not a small business. The Commissioner found the dismissal unfair.

How much was awarded

Mr Kerle did not seek reinstatement, and the business appeared to have stopped trading. On compensation, the Commissioner accepted that he would likely have worked eight more weeks, to 9 December 2016. At his weekly wage of $961.54, that came to $7,692.32. Taking off the one week's notice he had been paid left $6,730.78. The Commission ordered Basketballtek to pay him that amount, taxed according to law, plus superannuation.

What this means for you

If your employer says your job is redundant, check whether an award or enterprise agreement covers you. Every modern award and enterprise agreement must include a consultation term. An employer that skips consultation may lose the right to rely on redundancy as a complete answer to an unfair dismissal claim. Being replaced by someone doing the same work is also a sign the job may still be needed.

For employers: financial pressure can be a real reason to cut a role, but it needs evidence, and the award consultation steps come first. If you have been dismissed, the time limit is short: an unfair dismissal application must be lodged within 21 days.