Was sick worker targeted for redundancy?

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Was sick worker targeted for redundancy?

An admin worker claims she was targeted for redundancy due to ill health. But was her bid for unfair dismissal successful?

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The Fair Work Commission has deemed the termination of an employee was not unfair because the company needed fewer staff after a restructure.

The employee’s perception she was selected for redundancy because she had taken time off for health reasons was understandable but did not make the termination harsh.

[Full text of this case: L v Trustweld Engineering Pty Ltd [2014] FWC 7576 (30 October 2014)]

Cutting back on administrative staff


The employee had been performing administrative duties for a considerable period of time. As the company grew, another employee was employed in a similar role. The more senior employee was on sick leave for some months, and then returned to work in a part-time capacity.

In June 2014, the company decided to make some employees redundant. Two managers decided to terminate the more senior of the administrative workers.

The woman applied to the Fair Work Commission alleging unfair dismissal according to s394 of the Fair Work Act 2009.

FWC finds dismissal fair


The Commission noted the reason for the termination had been valid, since the decision had been taken for operational reasons after a restructure.

The question whether the company had complied with its obligations to conduct the termination fairly was more complex to determine than for most other terminations. Prior consultation, giving notice, and giving an opportunity for the employee to have some input in the termination decision did not apply.

Consultation

Redundancies due to restructuring could not involve asking employees to make comments on the situation. However, consultation with the woman in this case could, for example, have given her an opportunity to indicate her relative strengths, preparedness to work in different roles or perform other work. Failure to do that had been a negative factor of the termination procedure.

Process

The Commission also examined the process of redundancy selection but found no suggestion of unfairness. The woman, however, believed she had been selected for redundancy because she had recently returned from an absence of seven months because of illness.

Although the woman felt her illness had cost her her employment, the Commission found no real evidence her termination had been harsh. Her application was dismissed.

L v Trustweld Engineering Pty Ltd [2014] FWC 7576 (30 October 2014) 

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