Redundancy, after negative remarks, was genuine

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Redundancy, after negative remarks, was genuine

An employee, who made ‘rude’ remarks to the new owners of a meat processing company, was genuinely made redundant, Fair Work Australia has ruled in rejecting his unfair dismissal claim.

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An employee, who made ‘rude’ remarks to the new owners of a meat processing company, was genuinely made redundant, Fair Work Australia has ruled in rejecting his unfair dismissal claim.
 
Tatiara Meat Company Pty Ltd (TMC) was purchased by Swift Australia Pty Ltd (Swift) in February 2010.
 
A week later the TMC cost controller was subsequently made redundant. He claimed unfair dismissal, arguing his termination was not a genuine redundancy, because he suffered ‘prejudice’ in the process of dismissal.
 
Commissioner David Steel heard that on the day of the takeover the new owners held an all-staff meeting. In that meeting, the cost controller made some remarks in the form of a personal introduction to his new employer.
 
The worker submitted that his remarks were made in the context of his being under some work pressure, but that they were ‘intended to be jovial’.
 
However, the new owners found the remarks ‘conveyed an element of rudeness, defensiveness, flippancy and negativity’ to the new work situation.
 
The worker also attended an individual meeting with management that became ‘heated’. He then sent an email to a Swift employee alleging that Swift management had come across as ‘extremely cold, extremely emotionless, extremely unwelcoming and unfriendly and extremely secretive’.
 
He argued Swift should have considered him for redeployment, given his skills and his more than 17 years of employment with TMC.
 
Structural changes accepted
 
However, Commissioner Steel accepted the company’s evidence that the worker’s specialist role was not a ‘requisite one’ for their preferred structure.
 
He noted that the worker was one of 11 workers made redundant due to the structural changes Swift implemented.
 
‘It is clear from the evidence that the applicant’s (worker) specialist role was identified before the transmission of his employment as a position that may not be required by the incoming employer,’ Steel said.
 
‘The new owners had an alternative arrangement for such tasks on a group basis and had a contrasting approach to the tasks.’
 
Steel further found that the worker did not have the requisite qualifications or experience for a transfer and would probably not have accepted a position with Swift anyway.
 
‘The tribunal finds that the applicant did not demonstrate a willingness or motivation to work with his new employer and that in all probability the applicant would not have found an offer of production work to be acceptable alternative employment to his role and that it was not reasonable in all the circumstances that he be redeployed to such production positions and redeployment generally,’ Steel said.
 
FWA ruled the worker was genuinely made redundant and could therefore not pursue an unfair dismissal claim.
 
 
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