Weighing the fairness of a redundancy

Cases

Weighing the fairness of a redundancy

Commissioner Lewin in the AIRC considered the impact of an injury to an employee on the employer's decision to make the employee redundant.

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Commissioner Lewin in the AIRC considered the impact of an injury to an employee on the employer's decision to make the employee redundant.

On the way to approach the issue, the Commission stated:

'I accept that consideration of the matter [the injury] is relevant to the determination of the question of whether or not the termination of the applicant’s employment was harsh, unjust or unreasonable, however, I shall treat it separately to the question of whether or not there was a valid reason for the termination of the applicant’s employment.

Whilst this partitioning is a matter of my judgment nevertheless the consideration of the issue will be substantial and effective in weighing the fairness of the termination.'

Background

A vineyard hand claimed that her termination of employment was harsh, unjust and unreasonable and sought reinstatement, orders for continuity of employment and lost wages.

The applicant commenced her employment with the respondent-employer as a vineyard hand in February 2000. In November 2002 the applicant suffered an injury to her right ankle while working for the respondent. The applicant made a WorkCover claim, which was accepted. In April and May 2004, the applicant participated in a return to work programme designed to facilitate her return to full-time duties. On 18 May 2004 the applicant was cleared by her medical practitioner as fit for normal duties.

While she was cleared to return to work it was her evidence that she continued to experience some pain as a result of her injury and that she continued to take painkillers. Further, the applicant says that as a result of her injury she had difficulty driving, which meant that she could not drive for long periods of time without suffering pain and the risk that her ankle could 'freeze' or become immobile. Her estimate of the distance she could comfortably drive at the time of the termination of her employment was approximately 15 kilometres.

After correspondence to the applicant relating to the need to reduce labour, on 24 September 2004 the respondent wrote to the applicant advising her that it would terminate her employment and make a severance payment, in accordance with the relevant certified agreement

Reason employee made redundant

The Commission concluded that the termination was at the initiative of the employer and took effect when, in the absence of an election by the employee, the employer made the termination payment on 29 September 2004.

The employer argued that there was a valid reason for the termination of the applicant’s employment, which was related to the operational requirements of the respondent’s undertaking. The respondent’s vineyard had emerged from its establishment phase as a mature vineyard, it no longer required the level of staffing which had operated for the period during which the applicant was employed at that location.

Redundancy not unfair dismissal

The termination of the applicant’s employment was not harsh, unjust or unreasonable. The application was dismissed. Commissioner Lewin concluded:

'The applicant made no effort to support her claim to be prevented from driving to the Sinclair Vineyard, or other vineyards, and accordingly the respondent was entitled to act in accordance with the medical evidence it did have. That evidence did not support the applicant’s claim.

There was ample opportunity between 9 August 2004, when the applicant was first advised of her potential redundancy, and 29 September 2004, the date of the termination of the applicant’s employment, for medical evidence in support of her assertion to be sought and provided to the respondent.

Last on - First off

On the application of the 'last on - first off' principle, the Commission stated:

'The application of a “last on, first off” principle to the selection of the person to be made redundant was valid in the circumstances, that is to say the criterion was based on objective factors, free of any errors, comparative judgments or personal preferences for one employee over another.

Whilst, in some circumstances, this criterion might be a veil for prejudicial termination in circumstances of redundancy, in this case, I consider that was not the basis for the adoption of that criterion. ... the use of the “last on, first off” criterion was a well established custom and practice of the respondent in redundancy situations. …'

K Thomas and Pogue Vineyard Joint Venture –AIRC (Lewin C) –PR960304 – 9/9/05.

Related

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