Made redundant on maternity leave

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Made redundant on maternity leave

There was a valid reason based on operational requirements to abolish the applicant's position. The tertiary accounting qualification selection criterion adopted was bona fide, rational and reasonable.

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There was a valid reason based on operational requirements to abolish the applicant's position. The tertiary accounting qualification selection criterion adopted was bona fide, rational and reasonable. The failure to respond to successive requests from the applicant in relation to her future employment and the failure to consult did not weigh sufficiently to lead to a conclusion of unfair dismissal.

A Full Bench of the AIRC allowed the employer's appeal.

Background

The employer appealed against a decision Hingley C made on 7 April 2005. The Commissioner had ordered the employer to pay the employee the sum of $5,664. The employee cross-appealed challenging the quantum of the order.

The applicant was made redundant while on maternity leave. The Commissioner had found that there was not a valid reason for the termination of the employee’s employment. The Commissioner accepted that there was a genuine need for Powerlab to restructure its business and cut costs by reducing staff. However, he found that the adoption of the tertiary qualification criterion as a basis for selecting Ms Georgiadis for redundancy was a sham, a mere device to hide its true motive for selecting Ms Georgiadis for redundancy, namely, her family responsibilities.

Genuine redundancy

The Full Bench noted that the employer had made a voluntary redundancy payment to the applicant and that had to be balanced against the employer's conduct in not notifying the employee of the reason for the termination prior to the termination decision being made or communicated to her.

There was a valid reason, based on operational requirements, for Powerlab to restructure its business abolish Ms Georgiadis’ position redundant and select Ms Georgiadis for redundancy.

The tertiary accounting qualification selection criterion adopted by Powerlab, in the circumstances, was bona fide, rational and reasonable.

The issue became whether, in the context of Powerlab’s failure to respond to successive requests from Ms Georgiadis for a date on which to resume her employment following maternity and/or compassionate leave, the failure by Powerlab to consult with Ms Georgiadis prior to the decision to abolish her position nevertheless renders the termination of her employment harsh, unjust or unreasonable.

The Full Bench considered the argument that the voluntary redundancy payment should be regarded as redressing the unfairness associated with Powerlab’s failure to consult with Ms Georgiadis at an appropriate time. Although the case was finely balanced, in all the circumstances and giving effect to a 'fair go all round', the Full Bench concluded that the termination of Ms Georgiadis’ employment was not harsh, unjust or unreasonable.

The appeal was allowed, the decision of the Commissioner was quashed and the cross-appeal was dismissed.

Powerlab Pty Ltd and K Georgiadis –FB of AIRC (Lawler VP, McCarthy DP and Mansfield C) –PR963162 –10/10/05.

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