Priceline 'operational reasons' case to be reheard

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Priceline 'operational reasons' case to be reheard

An AIRC decision allowing the Priceline retailer to dismiss a worker and then hire another more cheaply for the same job will be the subject of a new hearing ordered by a Full Bench of the AIRC.

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An AIRC decision allowing the Priceline retailer to dismiss a worker and then hire another more cheaply for the same job will be the subject of a new hearing ordered by a Full Bench of the AIRC.

Commission Eames had ruled that under the WorkChoices laws, Priceline could legally sack a worker on $100,000 a year for 'operational reasons', and then replace him with someone on $75,000.

Inadequate reasons

The Full Bench found that the Commissioner gave inadequate reasons for his decision - noting:

'It is clear that there were conflicts in the evidence which required to be resolved by the exercise of judgment and by the apportionment of relative weight to the evidence and material before the Commission.

'While the Commissioner made some findings he made no intermediate findings. He moved directly to the overall conclusion that the termination of employment was not a sham and that the appellant was not targeted inappropriately …

'Furthermore, in the absence of intermediate findings we are unable to be confident that the Commissioner approached the application of the test in ss643(8) and (9) in the correct way. It is accepted that the decision of the Full Bench in Village Cinemas properly sets out the nature of that test, but it is not clear that the Commissioner in fact applied it.

'Whether or not a termination of employment is for genuine operational reasons, or for reasons which include such reasons, is to be ascertained by an examination of the reasons for the termination of employment in question, rather than by identifying a generalised operational need to reduce employment.

'In that context the question of witness credibility may loom large, as the passages we set out earlier from Bowling demonstrate. Because the Commissioner did not indicate how important evidentiary conflicts were resolved or how he applied the statutory test, we have concluded that the reasons for decision fell short of what is required.'

New bench

The Full Bench continued:

'We grant leave to appeal. The appeal must be upheld and the decision quashed. The respondent’s application pursuant to s649 should be reheard. It is preferable that the application not be reheard by Commissioner Eames. The proceedings will be referred to Senior Deputy President Acton, Head of the Termination of Employment Panel, for reallocation.'

A Cruickshank v Priceline Pty Ltd [2007] AIRCFB 513 (27 June 2007)

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