Published 26 March 2017
Mr Grant Skinner; Mr Mark Pemberton; Mr Joshua Ross; Mr Kadin Hill; Ms Abigail Bryant; Mr Mareck Preston v Asciano Services Pty Ltd T/A Pacific National Bulk
The Full Bench of the Fair Work Commission recently found the dismissal of seven employees was not a case of genuine redundancy because the employer failed to explore all redeployment options by not properly considering “job swaps”.
In a recent case, Mr Grant Skinner; Mr Mark Pemberton; Mr Joshua Ross; Mr Ian Lucas; Mr Kadin Hill; Ms Abigail Bryant; Mr Mareck Preston v Asciano Services Pty Ltd T/A Pacific National Bulk [2017] FWCFB 574, Full Bench of the Fair Work Commission found the dismissal of 7 employees was not a case of genuine redundancy because the employer failed to entertain the possibility of job swaps.
Pacific National Bulk suffered a reduction in workload due to a decrease in grain exports and a loss of contracts. This caused the company to make the positions of 7 employees redundant.
Each of the 7 employees made unfair dismissal applications, claiming that the dismissals were not a result of a genuine redundancy as it would have been reasonable for Pacific National Bulk to redeploy the employees to other positions.
The matter was first heard by Commissioner Johns, where it was found that the employees had been dismissed as a result of genuine redundancies. The dismissed employees appealed the decision to the Full Bench. They argued the Commissioner had erred in finding they were made genuinely redundant. In particular, they argued the Commission erred in finding that it would not have been reasonable for Pacific National Bulk to redeploy the employees, as many other employees said they would take voluntary redundancy and other positions had been advertised after their dismissals.
Pacific National Bulk argued there was no error in the findings of the Commissioner at first instance and maintained the employees knew of positions available in Enfield and Moss Vale but expressed no interest in being redeployed.
Decision
The Full Bench allowed the appeal and quashed the Decision of the Commissioner at first instance, remitting the unfair dismissal application back for rehearing.
The Full Bench noted “that there is no general obligation for an employer to implement or facilitate a process whereby employees whose positions are redundant can swap with other employees who wish to volunteer for redundancy”. However, the Full Bench found that Pacific National Bulk should have considered allowing swaps for the following reasons:
- Pacific National Bulk was a large business with a significant number of employees performing the same role as the employees made redundant;
- Allowing a swap would not have placed onerous training requirements on Pacific National Bulk because many employees performed the same or very similar roles;
- Swaps were available in depots close to where the dismissed employees worked, meaning Pacific National Bulk would not have incurred costs associated with transferring employees;
- Pacific National Bulk had allowed swaps previously; and
- Pacific National Bulk had suggested swaps may have been a possible option in the round of redundancies that resulted in the dismissal of the 7 employees in this proceeding.
Consequently, the Full Bench found Pacific National Bulk’s failure to consider swaps meant it failed to comply with section 389(2) of the Fair Work Act 2009 (Cth), which requires an employer to redeploy a person within the organisation if it is reasonable to do so.
The Full Bench said: “We are not satisfied that the respondent did all that it was required to do in determining whether it would have been reasonable in all the circumstances to redeploy a person whose position is redundant, by allowing that person to swap with another employee who wished to accept redundancy”.
The matter was referred back to Commissioner Johns for rehearing.
Take away points for employers
This case demonstrates that employers must properly consult with employees when their position may be made redundant and to actually consider any proposals that are put forward by an employee as to how the impact of the redundancy can be lessened.
Further, if there are positions to which an employee can be redeployed within the organisation, an employer has an obligation to redeploy the employee. If the employer fails to do so, it could be liable to the Commission making a finding that the redundancy was not genuine and that the employee had been unfairly dismissed.
This content is general in nature and provides a summary of the issues covered. It is not intended to be, nor should it be relied upon, as legal or professional advice for specific employment situations.
Olexo Workplace Law recommends that specialist legal advice should be sought about specific legal issues.
