Two recent unfair dismissal decisions explore the issues of when
a termination of employment is not a dismissal but a genuine
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
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
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
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.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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