Redundancy was a 'sham', claims manager

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Redundancy was a 'sham', claims manager

The Fair Work Commission has rejected a manager's claim that her redundancy was a sham and she was dismissed because her supervisor disliked her.

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The Fair Work Commission has rejected a manager's claim that her redundancy was a sham and she was dismissed because her supervisor disliked her.

It found her role had been "unavoidably at the mercy" of government funding.

Background


'LW', a casual plant nursery manager, was dismissed when her employer, the Northern Land Council (NLC), exhausted its grant funding.

According to the Fair Work Commission, the NLC is a Commonwealth statutory authority that supports Aboriginal people in the Northern Territory to manage and acquire traditional lands. It receives funding from the Indigenous Land Corporation for the Real Jobs Program, which employs 12 full-time equivalents at a remediation project.

LW was one of several people who were employed on a casual basis to work irregular hours on an ad hoc basis as required for up to five years. A clause in the contract of employment said the worker and the NLC both had the right to terminate employment by giving one hour of notice. 

LW was employed by the NLC between October 2015 and August 2016. Funds to employ casual employees had been exhausted and the NLC states that it told staff at some point prior to a meeting in early July 2016 and, in any event, at a meeting at that time.

The NLC was able to extend the casual employments until August 2016 but then had to terminate several staff. The NLC provided LW with one week’s notice of termination.

Commissioner Wilson found as a fact that there was then “at least, and to put it lightly, a disagreement” between the applicant and her supervisor. 

LW alleges that her supervisor called her “very vindictive” and that he “started screaming at her,” when she asked about the reasoning for the reallocation of duties to other employees. 

NLC alleged that LW became aggressive and behaved in a way contrary to the NLC code of conduct.

Her supervisor alleged that LW “flew in to an abusive tyrant [sic] saying ‘that’s total crap, NLC have loads of money’ ‘You are just making this up’ ‘you should have been doing a better job at getting further funding for us’ ‘you are hopeless’, ‘you are not a ranger coordinator, I have more experience than you’,” and then proceeded to make a series of verbal aspersions about his wife.

The NLC said this alleged conduct prevented any discussions about potential redeployment from taking place. 

However, LW, argued that she lost her job because her supervisor did not like her. She said the NLC had advised casuals of the funding situation in a “very direct, cruel and callous manner”. She also complained to the Commission of  harassment. 

She also argued that the plant nursery was still operational and that the functions she performed were still being carried out by other casual staff. 

The law


Under s389 of the Fair Work Act, dismissal is a genuine redundancy if the employer no longer needs anyone to do the job because of operational changes and the employer has complied with the appropriate obligations to consult.

However, under s389(2) a dismissal is not a genuine redundancy if it would have been reasonable for the affected person to be redeployed in the employing organisation or in an associated entity. 

The commission’s decision


Commissioner Wilson noted the NLC’s financial position, the terms and conditions of employment and the fact that in August 2016 the NLC had terminated the employment of all casual staff.

The commissioner noted that that the NLC takes workers on when opportunities arise and often on a temporary basis. The commissioner also dismissed LW’s argument that the redundancy was not genuine because the functions she performed were still being carried out. 

“It does not detract from the [NLC’s] position that the duties previously performed by her and other casual staff, as opposed to their specific jobs, have been reallocated as part of the operational requirements of the NLC… After she had left the organisation, the work that Ms W had performed was distributed to others,” Commissioner Wilson ruled. 

The commissioner then found that her role was “unavoidably at the mercy” of funding and the circumstances of the dismissal, including the “verbal stoush”, meant there was limited availability to consider redeployment.

The commissioner also found the NLC had complied with its consultation obligations.

Accordingly, the dismissal of LW was a genuine redundancy. Her application was dismissed. 

LW v Northern Land Council [2017] FWC 281
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