Resources: Blogs

Reinstated and it feels so good

Blogs
|

FWC finds General Manager’s redundancy based on consultant’s recommendation not genuine

When employers conduct an organisation-wide review of their operations, it can be both an exciting and challenging time. There are significant gains to be made by identifying inefficiencies and addressing them. However, the desire to move too swiftly and rush this process should be avoided. Moving too fast may result in employers either intentionally or unintentionally disregarding their legal obligations to employees.

When employers conduct an organisation-wide review of their operations, it can be both an exciting and challenging time. There are significant gains to be made by identifying inefficiencies and addressing them. However, the desire to move too swiftly and rush this process should be avoided. Moving too fast may result in employers either intentionally or unintentionally disregarding their legal obligations to employees.

This kind of disregard was the subject of a recent decision of the Fair Work Commission (FWC) where a community legal centre made its 65 year old, long serving General Manager redundant with no consultation or exploration of redeployment (Girdler v Western Sydney Legal Centre Incorporated T/A Western Sydney Community Legal Centre (WSCLC) [2017] FWC 4130).

Prior to terminating the General Manager’s employment, the legal centre’s Committee of Management had engaged a consultant to conduct a review of the organisation. The consultant provided a report recommending some structural changes. One of those changes was to do away with the General Manager position and create three new senior management positions – a Director, a Human Resources Manager and a Community Programs Manager.

Without any notice that her position was at risk of redundancy, the incumbent General Manager was called to a meeting where she was informed that her position was redundant and her employment was terminated, effective immediately.

The General Manager made an application to the FWC claiming that she was unfairly dismissed. She denied that her dismissal was a genuine redundancy because her employer had not complied with any of its consultation obligations and the new Director position performed all of her General Manager duties (with an increased salary), less some of the HR duties that had been allocated to the new HR role.

At the FWC’s hearing of the matter, the consultant who recommended the change in management structure gave evidence that she did not advise the legal centre on the termination of the General Manager’s employment. In considering the matter, Commissioner Riordan commented that there seemed to be a strained relationship between the Committee of Management and the General Manager, noting that not a single member of the Committee of Management came to the FWC to either give evidence or witness the proceedings.

Commissioner Riordan found that the legal centre’s dismissal of the General Manager was not a genuine redundancy and therefore, it did not have a valid reason for dismissing her. Commissioner Riordan said that the legal centre’s actions were “fanciful and capricious” and that its dismissal of the General Manager was unfair.

In ordering a remedy in favour of the General Manager, Commissioner Riordan said:

If not for the deliberate and inappropriate actions of the Committee of Management, Ms Girdler would have been appointed to the role of Director, the functions of which she was already performing. The only changes to Ms Girdler’s former role have been the increase in remuneration and the removal of the HR function. Ms Girdler was performing every component of the new Director role but without the title. It was her job.

The legal centre was ordered to reinstate the General Manager into the new Director position.

Employers should note that whilst the recommendations of consultants may seem attractive, the employer bears the ultimate responsibility for deciding if, when and how to implement those changes in a compliant way. Reliance on the recommendations of a consultant will not absolve an employer of their legal responsibilities to employees.

 

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.

 

Similar articles

Employee’s exaggerated complaints created psychosocial risk

False alarm

Employers have work health and safety obligations to eliminate or minimise psychosocial risks in the workplace so far as is reasonably practicable. These risks arise from psychosocial hazards including conflict or poor workplace relationships.

Read more...

Commission finds swearing in workplace constituted sexual harassment and warranted summary dismissal

R-E-S-P-E-C-T

With the new Respect@Work amendments now in place, employers should be mindful of a recent decision handed down by the Fair Work Commission where it upheld the dismissal of an employee on the basis that swearing at a colleague constituted sexual harassment.

Read more...

FWC warns that offers of redeployment should not be based on assumptions

Pride & Prejudice

An employee’s dismissal will not be a case of genuine redundancy if it would have been reasonable in the circumstances for the employee to be redeployed within the employer’s enterprise or one of its associated entities.

Read more...

FWO secures penalties against bar operator and external accounting firm

Closing time

The Fair Work Act 2009 (Cth) requires employers to keep certain employee records for a period of 7 years. These records are necessary to ensure that employees have been paid their minimum entitlements should an underpayment claim be made.

Read more...

Employer found liable for workers compensation despite worker’s unreasonable perceptions

Fact or fiction

A recent decision of the New South Wales Personal Injury Commission serves as a reminder of the differing standards of proof when determining liability for claims of bullying and/or harassment under workers compensation laws and the Fair Work Act 2009 (Cth).

Read more...

Commission finds employee’s flexible working request to work entirely from home was not reasonable

The worst has now passed

One of the many changes to the Fair Work Act 2009 (Cth) introduced this year include the Fair Work Commission’s new powers to deal with disputes relating to requests for flexible working arrangements.

Read more...

Let's talk

please contact our directors to discuss how ouR expertise can help your business.

We're here to help

Contact Us
Let Workplace Law become your partner in Workplace Relations.

Sign up to receive the latest industry updates with commentary from the Workplace Law team direct to your inbox.