Australia: Summary of dismissal decisions

Last Updated: 24 February 2011
Article by Emma Reilly

Mr Francesco Di Masi v Coastal Fisheries Pty Ltd ATFT Sea Empire Unit Trust (U2010/5316) – Commissioner Williams, Perth

20 August 2010

Lack of consultation with employee not preventative of finding of genuine redundancy

On 15 April 2008, the applicant was employed as a fish filleter by the respondent, a small business with less than 15 staff. He was terminated on the basis of redundancy, while on holidays in January 2010.

The Seafood Processing Award 2010 required the company to consult with the worker on his redundancy, which had not occurred.

Commissioner Williams accepted the respondent's evidence that it no longer required the job to be fulfilled because of a genuine change in the company's operational requirements, including the loss of a client and the profitability of the filleting work. Although the required consultation did not occur, it was accepted that in this instance, it would not have changed the outcome, such that the applicant's claim failed. The procedural failure of the employer to fully comply with the award consultation obligation was held to have had no practical impact.

Mr Gim Pheng Ho v A. P. Eagers Limited (U2009/13208) – Commissioner Simpson, Brisbane

27 August 2010

Not a genuine redundancy where lower position remained available

The applicant was a 62 year old qualified accountant employed with the respondent, a car dealership operator, for over 24 years. He was dismissed on 9 October 2009 after a corporate restructure, purportedly on the basis of redundancy.

The applicant argued that although his position no longer existed, the restructure did not mean that his job did not need to be performed by anyone.

There was an alternative position of 'assistant accountant', with a lesser salary. The respondent indicated that offering the lesser role to the applicant would have been constructive dismissal, and that he did not have the requisite computer and communication skills for the job anyway.

Commissioner Simpson stated that the applicant might well have taken the lesser role, as an alternative to unemployment, and there was no evidence to support the argument of the respondent in respect of his lack of skills. As such, the termination was not a genuine redundancy and it was harsh and unreasonable. The Commissioner ordered $25,000 in compensation in lieu of reinstatement.

It was specified in the judgment that the objective test in s389 of the Fair Work Act 2009 as to other available positions should not be read narrowly. It was not intended to confine redeployment options only to roles that are the same status as the position that the employee occupied at the date of redundancy.

Chris Birt v K&S Freighters Pty Limited (U2009/12294) – Deputy President Swan, Brisbane

31 August 2010

Dismissal harsh, unjust and unreasonable; compensation not reduced regarding misconduct

The applicant was a 49 year old truck driver, who commenced employment with the respondent in May 2008. He became ill with cancer in early 2009 and took some time off work on sick leave. The applicant returned to the workplace in April 2009. On 25 August 2009, the applicant was involved in an accident whilst driving his truck. He hit a fence when performing a u-turn at a loading dock.

The respondent had a policy that employees pay for damages to vehicles when, in the employer's view, the damage was caused by the driver's negligence. The applicant denied knowledge of this policy, prior to his accident.

The respondent requested that the applicant pay $3,100 plus GST for a new bumper bar, and proposed to deduct $100 per week from his pay.

The applicant refused to authorise the deduction, and was dismissed on 9 September 2009.

It was held that an accidental error occurred whilst the applicant was performing his duties. A high level of skill and concentration is required by truck drivers, and accidents which are not the result of negligence, in the true sense of the word, would from time to time occur. That the applicant did not respond positively to the demands of the respondent in respect of repairs to the truck did not justify his termination, or constitute misconduct so as to reduce compensation. By the time of hearing, the applicant had mitigated his loss by obtaining alternative casual and then permanent employment. However, 20 weeks remuneration was ordered to be paid to the applicant by the respondent, equalling $21,000.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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