Sensis Pty Ltd v Gundi [2017] FCA 1519

Sensis Pty Ltd v Gundi [2017] FCA 1519

The respondent was not redundant within the meaning of the enterprise agreement, as the appellant required the respondent's position to be performed. The respondent was offered both a Reasonable alternative position and a Suitable Position within the meaning of the enterprise agreement; therefore, he was not entitled to redundancy payments or a remedy for breach of contract. The primary judge erred by incorrectly placing the onus of proof on the appellant, rather than the respondent.

Parties
Appellant: Sensis Pty Ltd; Respondent: Robert Gundi
Jurisdiction
Australia
Judgment Date
15 December 2017
Procedural Posture
Appeal / Judgment
Outcome
Appeal allowed; orders of primary judge set aside; proceeding dismissed.
Legal Topics
Redundancy, Enterprise Agreement, Reasonable Alternative Position, Suitable Position, Onus of Proof, Remedy for Breach of Contract
Industrial Law Employment Law Redundancy Enterprise Agreement Reasonable Alternative Position Suitable Position Onus of Proof Remedy for Breach of Contract

Case Brief

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Parties

Sensis Pty Ltd

Appellant

Robert Gundi

Respondent

Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 whether respondent's position was made redundant
  2. 2 whether respondent was redeployed to a Reasonable alternative position within the meaning of the Sensis Enterprise Agreement 2014
  3. 3 whether respondent was offered a Suitable Position within the meaning of the Sensis Enterprise Agreement 2014

Ratio Decidendi

The respondent was not redundant within the meaning of the enterprise agreement, as the appellant required the respondent's position to be performed. The respondent was offered both a Reasonable alternative position and a Suitable Position within the meaning of the enterprise agreement; therefore, he was not entitled to redundancy payments or a remedy for breach of contract. The primary judge erred by incorrectly placing the onus of proof on the appellant, rather than the respondent.

Court Disposition

Appeal allowed; orders of primary judge set aside; proceeding dismissed.

Orders

  • The appeal be allowed.
  • The orders made by the Federal Circuit Court of Australia on 27 June 2017 in MLG1206/2016 be set aside.