Two recent unfair dismissal decisions explore the issues of when a termination of employment is not a dismissal but a genuine redundancy.
Mr Francesco Di Masi v Coastal Fisheries Pty Limited ATFT Sea Empire Unit Trust
Lack of consultation with employee not preventative of finding of genuine redundancy
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 whilst on holidays.
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
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 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 a 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.
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