Redundant printers wrongly chosen on workers comp history

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Redundant printers wrongly chosen on workers comp history

Workers compensation history should not have been taken into account as a primary reason for making certain employees redundant when a printing business decided who was to be retrenched.

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Workers compensation history should not have been taken into account as a primary reason for making certain employees redundant when a printing business decided who was to be retrenched.
 
While Senior Deputy President Lacy of the AIRC rejected the seven employees' claims about the Commission's powers in respect of punishment and deterrence, he accepted the proposition that the employer's conduct was a relevant matter to be taken into account in determining the remedy. He ordered a total payment of $65,000 in compensation.
 
Background
 
A full bench of the AIRC had held that the termination of employment of the employees' respectively was unjust and unreasonable. In so deciding the full bench made the following findings: 
  • the employer, in determining who it should retrench, had regard to the WorkCover and injury status of the employees; 
  • the employees were selected to be made redundant on the basis of their WorkCover history or injury status; 
  • there was no valid reason for the termination of the employees' employment within the meaning of s 170CG(3)(a) of the Workplace Relations Act 1996.
The full bench directed that Senior Deputy President Lacy determine the question of remedy in each of the matters.
 
Conclusions
 
The commissioner had to deal with the question of remedies of these seven employees.
 
He noted the full bench in this matter found that the employer selected the employees for redundancy on the basis of their WorkCover history or injury status. While, in the commissioner's view, matters such as capacity and injury status of a worker would be relevant issues for consideration in seeking to fulfil the skill needs of an employer, they are not matters appropriate for consideration without consultation with the worker about those matters and, to the extent necessary, her or his medical or rehabilitation adviser.
 
Five of the employees did not seek reinstatement. As to the two that did seek reinstatement, the Commission was satisfied on the evidence that the employer did not have a position for either of them. Orders for reinstatement were considered inappropriate and were refused.
 
He ruled that deterrence and punishment were 'the province of vindictive damages or exemplary damages'. These powers were not within the Commission's jurisdiction. The employees would launch to take an unlawful discrimination action in the Federal Court in order to seek such compensation.
 
An amount in lieu of reinstatement was considered appropriate in all seven cases.
 
In calculating the amount the commissioner took into account the following matters: the viability of the employer's undertaking; length of employee's service; and anticipated remuneration. The former employees were awarded over $65,000 as compensation for their unfair dismissals.
 
See: Application by A Smith & ors re Moore Paragon Australia Ltd - Australian Industrial Relations Commission (Lacy SDP) PR926979 23 January 2003.
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