The Fair Work Commission has found a former port worker should have been redeployed rather than made redundant, ordering his reinstatement plus continuity of service and payment of lost wages for the 15 months since his termination, writes AREEA senior workplace policy adviser, Lisa Matthews.

THE applicant in Sharp v Patrick Stevedores Holdings Pty Ltd was one of 160 employees made redundant by the stevedoring employer following the introduction of automation processes and associated restructuring at its Port Botany container terminal in March 2015.

A ‘package’ of unfair dismissal applications stemming from the terminations was heard separately, with the FWC deeming this to be one of those applications due to its peculiar circumstances.

While there was no dispute the applicant’s role as a straddle driver was no longer required due to automation, the applicant alleged his termination was not a ‘genuine redundancy’.

 

In his unfair dismissal claim, the applicant, represented by the MUA claimed:

• It would have been reasonable for the company to redeploy him rather than make him redundant;
• It was not a genuine redundancy because he had qualified for redeployment as a permanent irregular roster (PIR) stevedore, being ranked 90 for 91 such positions that were available at one time;
• He had indicated no preference for voluntary redundancy despite the company proceeding on that basis;
• The company provided no explanation as to why a grievance procedure filed by the MUA to challenge his ‘voluntary’ redundancy was unsuccessful;
• Another position for which he was suitably qualified and skilled was available before he was terminated and this role should have been offered to him; and
• He was a long-term employee with an unblemished work history and was entitled to be treated fairly.

Patrick argued it was a genuine redundancy for reasons including:

• At the date of his dismissal, it would not have been reasonable to redeploy him because there were no vacant positions at the terminal (all PIR roles had been provisionally filled at that stage);
• It would have meant withdrawing a PIR role from another employee that had been offered one, which was not reasonable;
• The company ‘had a genuine belief based on reasonable grounds’ that the applicant wanted a voluntary redundancy; and
• He was therefore terminated for legitimate operational reasons and paid a redundancy benefit.

In his 2 June 2016 decision, Commissioner Ian Cambridge found that the dismissal was not a case of genuine redundancy. Among his findings, the commissioner agreed the employee satisfied the selection criteria to be redeployed to a PIR position that was available at the time of his termination, and found no documentary evidence of the employee consenting to a voluntary redundancy.

Having established the termination was not a genuine redundancy, Commissioner Cambridge found it was harsh, unjust or unreasonable because the company failed to adhere to its established policies and procedures. It should also be viewed in the context of a ‘protracted and difficult history of the restructuring of the Patrick Port Botany container terminal’.

“Upon any objective contemplation, it was unreasonable for Patrick to proceed to invoke a ‘voluntary’ redundancy once it had been clearly established that there was no voluntariness on the part of the applicant,” the Commissioner said.

The employer’s grievance procedure also failed to give proper consideration of the matter, the commissioner said. ‘Industrial justice’ would be served by reinstating the man with continuity of service and payment for lost wages, he said.

Implications for employers

This decision highlights that where employers have put in place selection criteria and processes by which they will enact redundancies (voluntary or otherwise), they must stick to those processes or risk a dismissal not being found to be a genuine redundancy.

In this case, while it was clear the job was no longer required due to automation, it would have been reasonable to redeploy the applicant into a position for which, according to the employer’s own process, the applicant had qualified for based on its ranking system. The decision also underscores the importance of documenting carefully expressions of interest for voluntary redundancies.

To view the decision, click here.

For more information on this case or matters relating to redundancies or redeployments, contact your local AREEA office.