Workwise is receiving regular calls of late with regard to the process of redundancy and related matters including options like reduction of working hours, change of classification, redeployment and reduction of wages in light of current difficult economic circumstances.![MP900305711[1]](http://workwiseadvisory.com.au/wp-content/uploads/2015/04/MP9003057111.jpg)
It should be understood that these are complex matters with many factors that can come into play and not just in terms of the process that needs to be followed. Other factors include but are by no means limited to the rights of employers and employees under the Act, the specific requirements of any applicable Award or Registered Agreement and the operational circumstances of the business.
Workwise strongly recommends that, if you are contemplating any of the above matters, then you should make a time to meet with us to explore your options and seek legal advice from our industrial practitioner to ensure that your processes are lawful and that you fully understand your rights as an employer. The following summary of a FWC Decision highlights the impact that legal decisions can have into long held beliefs with regard to the process of redundancy and the rights of workers.
The decision by the Fair Work Commission will impact markedly into widely held beliefs regarding the inherent ‘rights’ of a permanent fulltime employee where a retrenchment process is under way.
Quinn VS David Moss Corporation t/a Damos [2016] FWC 2424 (15 April 2016)
In November 2015 ‘Mr Quinn’ (the Applicant) was employed by the David Moss Corporation Ltd as inventory manager but was made redundant and his employment was terminated as a result.
During this period a casual production employee was made into a full-time employee and his job title changed to that of ‘Materials Coordinator’.
Mr Quinn subsequently lodged an unfair dismissal claim in the Commission and he argued that the employer should have offered him the “new” position of Materials Coordinator and sacked the casual production employee. Mr Quinn said that he would have “seriously considered the demotion” despite a significant pay cut as this was better than being unemployed
The employer argued that Mr Quinn’s dismissal was a genuine redundancy, and that it was unreasonable in the circumstances to have terminated the casual production employee in order to create a redeployment vacancy, particularly when the casual employee was performing well in the position.
The employer further argued that the production employee’s change of title did not mean that a new position was created as a result and he continued to perform his prior duties albeit with some additional duties due to the redundancy.
In his decision Commissioner Leigh Johns found there were no ‘vacant positions’ within the Company to which Mr Quinn could have been redeployed. Further, that the slight change in the production employee’s position whilst enough to create a new title was not enough to be considered a ‘new role’.
The Commissioner stated that…..”This is not an uncommon occurrence when a job is abolished and the duties once performed by one person are shared amongst the remaining staff”.
“There is no authority for the proposition that a full-time employee………should have been given preference in continued employment…………….. by it (the Company) refusing to convert ……………………a long term casual employee, into a permanent full-time employee.
In finding Mr Quinn’s dismissal was a genuine redundancy and thereby rejecting his claim Commissioner Johns said…………….. “It has been established that it is not necessary for an employer to dismiss another employee for the purposes of redeployment”.
This decision by the Commission has affirmed that an employer is under no obligation to offer a new role to a full-time employee facing retrenchment instead of a casual.
Call us if you need further advice.