Genuine redundancies in construction ‘difficult’ to prove: FWA

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Genuine redundancies in construction ‘difficult’ to prove: FWA

Genuine redundancy principles may be ‘more difficult’ to apply in the construction industry, due to its ‘transitional’ nature, the FWA has said in an unfair dismissal case.

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Genuine redundancy principles may be ‘more difficult’ to apply in the construction industry, due to its ‘transitional’ nature, the FWA has said in an unfair dismissal case.
 
In December 2009, a labourer employed with SF Pty Ltd was dismissed. Three other employees were also dismissed on the same day.
 
The construction company claimed the termination was a genuine redundancy under s389 of the Fair Work Act 2009 because it was reducing the size of its workforce due to fluctuating requirements.
 
The worker had been selected to be one of the redundant employees because he was not as ‘productive’ as he once was, and that his skills were adequately covered in the remaining workforce.
 
However, in his unfair dismissal claim, the worker contended he had been selected because he had refused to work overtime on a rostered day-off (an optional request). Further, the company was contracted to work on a major project at ‘World Park’ so there was no slowing of workforce requirements.
 
Building industry different ...
 
Commissioner Peter Hampton noted that ‘care needs to be taken’ in the application of genuine redundancy principles in the construction industry.
 
‘Given the nature of the industry and the utilisation of daily hire broadly across this sector, not every change in employment levels associated with changes in business activity will be such as to meet the requirements of s389(1) of the Act,’ he said.
 
‘That is, in cases where the changes in work and/or employment levels are short-term and transitional in nature, it may be more difficult for an employer to demonstrate that the job in fact is no longer required.’
 
 ... but genuine basis found
 
Despite this, the Commissioner accepted there were changes to the operational requirements of the employer’s business that led to the decision to reduce the number of employees.
 
‘Although the staffing requirements had been high, including the need to operate on the RDO scheduled for 30 November 2009, the advice as to the availability of the pre-cast panels and the implications for ongoing work scheduling and labour, do provide an objective basis for that decision,’ Hampton said.
 
‘There was in that light, a genuine basis to reduce the staffing within the business.’
 
Hampton also noted that the worker had ‘regularly’ declined to work on RDO’s, working only one of the past nine RDO’s, and was ‘not sanctioned by the employer for doing so’.
 
Hampton ruled the termination was a genuine redundancy, and so was excluded from unfair dismissal provisions.
 
 
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