The risks of ignoring a proper redundancy procedure, or using it
to conceal the real reason for a dismissal, were starkly
illustrated with the Federal Court last week sounding a warning to
employers looking to manipulate a redundancy process to get rid of
The Royal Melbourne Institute of Technology (RMIT) failed to
persuade Justice Peter Gray that the dismissal of one of its
professors was not caused by her decision to exercise her workplace
rights, specifically a complaint of bullying and intimidation by
the new head of school.
RMIT's Vice-Chancellor, Professor Margaret Gardner, who made
the "redundancy" decision, told the court that she was
motivated primarily by financial considerations, as the
professor's area was running at a loss.
Justice Gray was unconvinced and felt that the dismissal
involved "reasons other than those to which she referred
explicitly" and there was no clear connection between the
financial deficit supposedly relied upon and the selection of that
employee for redundancy. The absence of any criteria for the making
of that decision clearly did not help.
Justice Gray was also unimpressed by Professor Gardner's
determination to ignore the new head of school's obvious
animosity towards the professor and to control the process to
ensure her decision prevailed.
The penalty of $37,000 reflected the need for deterrence and the
fact that RMIT, in particular Professor Gardner, had shown no
contrition. Justice Gray stressed that making redundancy the excuse
for getting rid of unwanted employees will not be tolerated if the
real reason for dismissal would be prohibited by the Fair Work
He ordered the professor to be reinstated to a position where
she would be able to avoid reporting directly to the person against
whom she had complained.
She was not awarded further compensation for reputational damage
as she had been paid a substantial sum on dismissal and her
reputation would be restored by the judgment.
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.
Treasurer Scott Morrison recently announced changes to a number of 2016 Budget superannuation contribution measures.
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