Junior position should have been considered: FWA

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Junior position should have been considered: FWA

Fair Work Australia has ruled redeployment options are not confined to similar positions, in finding that a senior accountant should have been offered a junior role before being made redundant.

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Fair Work Australia has ruled redeployment options are not confined to similar positions, in finding that a senior accountant should have been offered a junior role before being made redundant.
 
A senior accountant, employed with car dealership operator A.P. Eagers Limited, was made redundant in October 2009, after 24 years service.
 
In an unfair dismissal application, the worker argued his termination was not a genuine redundancy. He submitted the changes in the company’s operational requirements did not result in his job no longer being required to be performed by anyone.
 
The position was changed to ‘assistant accountant’ following a restructure of the finance department. The new role attracted a substantially less base salary ($55,000 compared to $75,000 in the senior position) and no other benefits.
 
He said he was never offered the new position, nor any other position within the company.
 
The company contended it had ‘reasonably explored’ redeployment opportunities but none had been found. The HR manager gave evidence that by offering the accountant a junior position, he believed it would have amounted to constructive dismissal anyway.
 
Further, the company argued the worker lacked the computer and communication skills to do the job.
 
Offer may have been accepted
 
Commissioner Chris Simpson found the worker may have been ‘quite prepared’ to accept a reduced remuneration package and corresponding level of responsibility, ‘as a preferred alternative to unemployment’.
 
‘Had the respondent (company) looked more closely into Mr Ho’s (worker) history of employment then they would have been aware that Mr Ho had demonstrated on a previous occasion a preparedness to accept a loss of entitlements in order to retain employment,’ Simpson said.
 
‘I do not accept that the lower employment package was a reasonable basis for the respondent to exclude Mr Ho from consideration for redeployment into the newly created assistant accountant position.’
 
No evidence on skills
 
As to the claims the worker lacked the required skills, Simpson noted that there was no evidence ‘only opinion’ to back this submission.
 
‘The respondent’s actions were unreasonable because they did not take appropriate steps to satisfy themselves that the applicant could not perform the available roll when his skills, qualifications and experience would suggest otherwise,’ Simpson said.
 
‘Having considered the skills and responsibilities required in his previous roles when compared to the requirements of the job description for the assistant accountant role, it is reasonable to believe Mr Ho was capable of fulfilling that role.’
 
‘Twenty-four years of service warranted a closer inspection of the matter by the respondent.’
 
A note on redundancy
 
In his judgment, Simpson also noted that the objective test in s389 of the Fair Work Act 2009 should not be read ‘narrowly’.
 
‘The respondent argued further that redeployment, in the purposive context of s389(2) must mean the employer unilaterally transferring the employee to a position which was the same as the one that the employee occupied at the date of redundancy,’ Simpson said.
 
‘I do not believe that the words in s389(2) are intended to confine redeployment options only to roles that are the same as the position that the employee occupied at the date of redundancy.’
 
The Commissioner ruled the termination was not a genuine redundancy and that it was harsh and unreasonable. He ordered $25,000 in compensation in lieu of reinstatement.
 
 
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