Redundancy unaltered by breach of award conditions


Redundancy unaltered by breach of award conditions

An employer's failure to consult with a worker before it made him redundant 'changed nothing', Fair Work Australia has ruled in rejecting an unfair dismissal claim.


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An employer’s failure to consult with a worker before it made him redundant ‘changed nothing’, Fair Work Australia has ruled in rejecting an unfair dismissal claim.
In January 2010, a fish filleter employed with Coastal Fisheries Pty Ltd was made redundant while on holiday.
The letter sent to the worker stated that there had been a ‘change in company structure’ and his employment was no longer required.
The worker argued the termination letter was ‘a lie’, and that he did not accept the filleting work was ‘no longer profitable’. He said he was always willing and did more than just his own job, including washing down benches and putting away rubbish.
CF contended there was a change in the products it supplied to one of its main customers. This change caused the production costs to outweigh any profit, and the line was discontinued.
The company, which employed fewer than 15 people, did not attempt to discuss the change in structure and how it would affect the worker, because there was no contact phone number and it was ‘probably best to just make a clean break’.
Procedural failure
Commissioner Bruce Williams accepted CF’s evidence that it no longer required the job to be fulfilled because of a genuine change in the company’s operational requirements.
However, he found that as the worker was covered by the Seafood Processing Award 2010, the company had failed to consult with the worker on his redundancy.
‘The evidence demonstrates that there were no discussions with him (worker) about the introduction of the change or the likely effect on him and there were no discussions about measures to avert or mitigate the adverse effect on him and consequently there was no opportunity for him to raise any matters for the respondent (employer) to consider,’ Williams said.
Despite this, Williams ruled the employer’s failure to consult would not have changed the outcome.
‘It is clear from the evidence that in this business given its small size there were no obvious measures that could have been taken to avoid Mr Di Masi (worker) losing his job in the circumstances,’ the Commissioner said.
‘Mr Di Masi has not suggested that there was any other course of action that could have been taken or any other things done that would have avoided him losing his job or otherwise assisted him.’
‘The discussion if it had occurred as required by the award would have changed nothing. The procedural failure of the employer to fully comply with the award consultation obligation did, in all probability, have no practical impact on Mr Di Masi.’
The worker’s unfair dismissal claim was dismissed.
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