Resources: Blog

Redeployment not appropriate for employee who did not trust manager

Blog
|

Living together in (im)perfect harmony

Most employers have a clear understanding of the importance of cultural “fit” to having a happy and productive workforce. Questions about “fit” usually arise during the recruitment process, but are rarely addressed in circumstances involving redundancy and redeployment.

Most employers have a clear understanding of the importance of cultural “fit” to having a happy and productive workforce. Questions about “fit” usually arise during the recruitment process, but are rarely addressed in circumstances involving redundancy and redeployment.

The requirement to implement redundancies usually results from an organisational restructure where an employee’s role is simply no longer required by their employer. This process is often objective in nature and does not require the evaluation of any variable, subjective criteria.

Redundancies of this strictly objective kind are generally considered to be “genuine redundancies” for the purposes of the Fair Work Act 2009 (Cth), subject to certain other criteria being fulfilled – including the exploration of redeployment options.

For example, a redundancy will not be considered to be a genuine redundancy if it would have been reasonable in all the circumstances for the employee to be redeployed within the enterprise or an associated entity. When assessing the reasonableness of redeployment, the courts have generally considered factors such as:

  • the nature of the position in question;
  • the qualifications necessary to perform the position;
  • the employee’s skills, qualifications and experience;
  • the location of the position;
  • the remuneration which is offered;
  • hours of work; and
  • direct reports/reporting requirements.

However, a recent decision of the Fair Work Commission (FWC) has highlighted the importance of organisational “fit” and workplace harmony in redundancy and redeployment situations.

In Velasquez v Cabrini Health Limited [2017] FWC 5965, a social worker claimed that his dismissal was not a genuine redundancy because his employer did not redeploy him into suitable alternative employment that was available at the time.

The case for the employer was that the social worker had a problematic relationship history with the manager that would supervise the available position.

The employer was concerned about this history and sought to discuss this with the social worker at his interview for the available position. The employer provided the social worker with a copy of a letter he had written two years prior, in which he had stated that he believed the manager was behind a “witch hunt” mounted against him and had made it clear that he neither trusted nor respected her at all.

The employer asked the social worker whether his history with this manager would have any impact on his ability to work in that team. The social worker, taken aback by this, simply asserted that the matter had been resolved by their HR department two years ago.

The employer ultimately elected not to redeploy the social worker into the position for a number of reasons. Relevantly, the employer remained unconvinced that the social worker had moved on from the earlier relationship issues and was also not convinced that he no longer harboured any ill will towards the manager. The employer had therefore concluded that he would not be an appropriate “fit” for the team.

The FWC, whilst critical of the employer’s redeployment process, found that it would not have been reasonable for the social worker to be redeployed into that position.

The FWC stated that, in addition to the objective factors to be considered, it is also relevant for an employer to consider the likely impact of redeploying a person on the cohesiveness of the work group and its efficiency and productivity.

The social worker argued that a mere “personality clash” was not a sufficient excuse to refuse redeployment. However, the FWC disagreed and stated that that phrase “personality clash” severely understated the level of distrust and disrespect that the social worker had for the manager. The potential impact of his redeployment on the efficient and harmonious operation of the team and the probability that it would result in further workplace conflict meant that the redeployment would have been untenable in the circumstances.

 

Lessons for employers

Consideration of redeployment opportunities can be akin to the recruitment of a new employee. The employer should take a wholistic approach by considering whether the employee is aptly qualified and suited to the role and also whether the employee is an appropriate “fit” for the team or department into which they might be redeployed.

 

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

Fair Work Commission rejects extension of time application after finding that the date of dismissal was made reasonably clear to the employee

Time's Up

The Fair Work Act 2009 (Cth) imposes a strict 21-day time limit for employees to file unfair dismissal applications in the Fair Work Commission. The statutory limit starts from the date the dismissal takes effect.

Read more...

Fair Work Commission finds employer’s failure to comply with its consultation obligations rendered an employee’s dismissal to be unfair

Pick up the phone

The COVID-19 pandemic has had an unprecedented effect on Australian businesses. Employers have had to, with little notice, adapt to these changing circumstances to try and minimise the adverse impact of lockdowns on the business and its employees.

Read more...

Fair Work Commission accepts that role with additional travel time was acceptable redeployment employment

The daily commute

Employers have long known that they are obliged to try to find new employment opportunities for employees who are faced with the redundancy of their current role.

Read more...

Commission orders employer to pay compensation as a result of its procedurally unfair disciplinary process

Procedurally disastrous

When investigating allegations of misconduct against an employee in the workplace, employers must ensure that any ensuing disciplinary process is kept distinct from and separate to from the investigation.

Read more...

The importance of WHS refresher training

Not a “one and done” thing

It is an expected and necessary part of work health and safety (WHS) plans that all new workers receive relevant WHS training.

Read more...

Casual Terms Award Review 2021

NEWS UPDATE

In March 2021, the casual employment amendments to the Fair Work Act 2009 (Cth) (FW Act) introduced a new statutory definition of “casual employee” and an entitlement to casual conversion as one of the National Employment Standards (NES).

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.

Signup to receive the latest industry updates with commentary from the Workplace Law team direct to you inbox.