No Comments

Employment Law – Employee Compensated After Award Obligations Ignored

Employment Law – Background

The Fair Work Commission has compensated an employee who was unfairly dismissed because her employer failed to comply with their consultation obligations under the relevant award.

Employment Law – Facts

In essence:

  • Carer’s that Care (CTC) terminated Ms Morris’ employment because it could not afford to pay her full-time wage after losing a significant number of clients
  • Ms Morris argued that she hadn’t received any warnings but was only told that CTC was shutting down and staff would be made redundant
  • She also argued that she was not provided with the opportunity to respond, because the managing director refused to have any discussions with Morris
  • Morris lodged an application for unfair dismissal

Employment Law – The Relevant Law

  • Section 389 of the Fair Work Act (‘The Act’) states that a genuine redundancy occurs when an employee’s position is no longer required and the employer has complied with any obligations under the modern award or enterprise agreement
  • The Fair Work Commission will then examine whether the dismissal was harsh, unreasonable or unjust under s387 of the Act

Employment Law – Fair Work Commission decision

The Fair Work Commission:

  • found that the employee’s dismissal was not a genuine redundancy because the consultation obligations under the Clerks-Private Sector Award were not satisfied
  • accepted that Ms Morris was dismissed because her role could no longer be performed due to operational changes
  • found that the company had failed to consult with Ms Morris as required under the award was significant. Additionally, the company only verbally notified Morris of the dismissal
  • consequently ruled that her dismissal was harsh, unjust or unreasonable.
  • ordered compensation of $5482

The decision is available for you to read through the hyperlink:

Morris v Community Caring P/L t/a Carers That Care (U2017/6386) [2017] FWC 4433

Employment Law – Tips for Employers  [...]  READ MORE →

No Comments

Redundancy Consultation Cannot be ‘Hollow’

In Belinda Lee v Mission Australia, the Fair Work Commission warned against “hollow” consultation in redundancy, emphasising that it cannot be conducted for mere show and must have value.

Facts

In essence:

  • A program manager at Mission Australia alleged that she was made redundant without consultation whilst she was on parental leave
  • Mission Australia wrote to the manager stating she was going to be made redundant as they were no longer delivering their Skills for Education and Employment course and Adult Migrant English Program after Federal Government funding cuts. They stated they failed in their search for redeployment opportunities for her
  • The manager’s request to delay her retrenchment and redeployment period until after she returned from parental leave to see if any further opportunities arose, was rejected by Mission Australia

The Decision

The Fair Work Commission:

  • granted an interim order which prevented Mission Australia from retrenching the manager
  • emphasised that consultation must have a purpose, stating that “if the consultation does not provide [the program manager] the opportunity to influence the decision, it is of no value and the requirement to consult and the consultation is hollow”
  • in determining whether redundancy was undertaken without consultation, Mission Australia needed to address three main issues, including whether it had engaged in meaningful consultation, had done all it could do to mitigate any adverse effects of the redundancy and had made all reasonable redeployment efforts.
  • highlighted the importance of making interim orders as the dismissal could only be undone with significant litigation
  • The parties reached a confidential settlement after conciliation

The decision is available for you to read through the following hyperlink:

Belinda Lee v Mission Australia [2017] FWC 3557 (4 July 2017)

Tips for Employers

Our Matthews Folbigg Workplace Solutions employment law team recommends employers:

  • ensure that when making an employee redundant employers have:
    • engaged in meaningful consultation
    • mitigated against any adverse effects of the redundancy
    • made all reasonable deployment efforts
    • ensure compliance with all employment laws including Fair Work Commission decisions, Awards and enterprise agreements
    • draft new/changes to employment law policies with the assistance of an employment lawyer
    • raise any employment law questions with an employment lawyer

    More Information

    Please call the leading employment lawyers in Parramatta, the Matthews Folbigg Workplace Solutions employment law team on 9635-7966 to speak with one of our employment lawyers. [...]  READ MORE →

No Comments

Employment Law – Redundancy Consultation

Employment Law – Background

Currently, there are no specific guidelines on how long employers should or must conduct redundancy consultations under a Modern Award.

Different rules of course may apply to enterprise agreements, under company policies or in some cases under the terms of an employee’s employment agreement.

We understand that employers may want to rush a business restructure in order to continue running the business, however, there are a few tips employers should consider to minimise any possible adverse effects. [...]  READ MORE →

No Comments

Consultation – Essential for a ‘Genuine Redundancy’

Most employers are generally aware that a ‘genuine redundancy’ is a complete defence to an unfair dismissal claim. However, a redundancy is not rendered ‘genuine’ simply because the redundancy is justified or necessary. The Fair Work Act 2009 (‘the FW Act’) requires employers to undertake a consultation process prior to the implementation of redundancies.

The consultation process requires employers to give employees adequate notice of potential workplace changes (i.e. redundancies), and discuss what steps can be taken to mitigate the effects of the workplace changes. [...]  READ MORE →