Greatest hits 2013: Is position redundant if job is still being done?

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Greatest hits 2013: Is position redundant if job is still being done?

In another 'greatest hit from 2013', a catering employee returning from injury called her redundancy an unfair dismissal, but the Fair Work Commission thought otherwise.

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In another ‘greatest hit from 2013’, a catering employee returning from injury called her redundancy an unfair dismissal, but the Fair Work Commission thought otherwise.

The Fair Work Commission has explained that when an employee’s tasks have been taken over by other people through a reorganisation so that there is no longer any function or duty for that employee to perform, his or her position has become redundant. 

In this case, although there was a genuine redundancy, the employer also had to comply with any award provisions relating to redundancy.

[Full text of this case: H v Australian Commercial Catering [2013] FWC 2625 (3 July 2013)]

Made redundant after a workplace injury

 
A food and beverage attendant employed by a catering organisation injured her right forearm while pushing and pulling a trolley at work in November 2012, and was then off work from the following day. 

Several weeks later, the attendant received clearance from her doctor to return to work on light duties and informed the HR manager at the work site. She was told that there was no work for her at the site but was offered work at another site. 

She declined the offer to transfer because of the extra travel time and the increased travel costs it would have entailed. She was then made redundant. She subsequently applied to the Fair Work Commission for unfair dismissal relief in relation to the termination of her employment according to s394 of the Fair Work Act 2009.  

FWC finds redundancy occurred

 
The attendant claimed that the termination of her employment had not been a genuine redundancy because her duties were still being carried out, although they had been shared between a few other employees. 

The employer’s case was that the attendant was no longer required because of a restructuring of operations and that the reason for the termination of her employment did not relate to her workplace injury.

The Fair Work Commission noted that a job can be made redundant through the reallocation of the individual elements of the job to other employees. The question was not whether the duties survived. 

According to Ryan J in Jones v Department of Energy and Minerals (1995) 60 IR 304:
‘What is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the re-organisation, any duties left to discharge. 

If there is no longer any function or duty to be performed by that person, his or her position becomes redundant.’

Non-compliance with award

 
The Commission also considered the award under which the attendant had been employed. The award specified that the employer must discuss with employees the introduction of any major workplace changes and the effect any adverse changes will have on the employees. The employer was also obliged to provide information in writing to employees about such changes. 

In this case, the employer had not provided written information to the attendant about the operational change — but only told her verbally that her position had become redundant when she reported that she could return to work. 

As a result, the termination was not a genuine redundancy within the meaning of s389 of the Act but a dismissal.
 

Termination accepted

 
However, it was also clear the attendant had accepted that termination of the employment with a redundancy payment was a better option for her than relocating to another site. The employer had paid the attendant in lieu of notice as well as the six-week redundancy payment required under the Act. The attendant had also continued to receive workers compensation payments for her injury until 24 March 2013.

The Commission found that the attendant’s dismissal had been neither harsh nor unjust nor unreasonable. Her application was dismissed.

H v Australian Commercial Catering [2013] FWC 2625 (3 July 2013) 
 
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