Mr Francesco Di Masi v Coastal Fisheries Pty Ltd ATFT Sea
Empire Unit Trust (U2010/5316) – Commissioner
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
The Seafood Processing Award 2010 required the company
to consult with the worker on his redundancy, which had not
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
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
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
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
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
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.
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