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FWC finds injured employee to be genuinely redundant

The Fair Work Commission in Brisbane has recently determined that the dismissal of an employee obtaining workers’ compensation and whose duties were being performed by labour hire workers was a case of genuine redundancy.

THE employee in this case had been absent from work for several months prior to his role being made redundant, due to a workplace injury that restricted his ability to perform his duties. The injured employee argued before the Commission that his dismissal was harsh, unjust or unreasonable due to his extended absence from work and the employer’s continued use of labour hire workers to perform the duties undertaken by his role.

Thiess met its consultation obligations

As a result of its client’s decision to restructure the workforce at the Curragh North Mine, Thiess no longer required the jobs of approximately100 employees and 50 labour hire workers to be performed. Thiess conducted meetings across two days to consult with workers at the mine about the possibility of redundancies, and to provide them with information regarding potential redeployments opportunities.

Further, Thiess contacted all absent employees, including the injured employee, the day after the meetings concluded. The injured employee was provided with the same information that all onsite employees had received, and the employer updated all absent employee contact details during these phone calls to ensure they could receive all relevant information provided to employees at the mine. This included voluntary redundancy applications and opportunities for redeployment.

The injured employee contended that all other employees participated in meetings and were offered information workshops about the proposed redundancies. The injured employee further submitted that other employees were provided with an explanation as to why their positions was being made redundant, and were also offered counselling.

The Commission concluded that Thiess had taken all reasonable steps to ensure that absent employees were provided with the same opportunities as those employees present onsite and did not accept that  the injured employee had been treated unfairly during the consultation process.

Labour hire not a barrier to redundancy

The injured employee further argued that his dismissal was harsh, unjust or unreasonable because Thiess continued to engage labour hire to perform some of the functions which he performed in his role as an operator. Also, the injured employee contended that Thiess was obliged to consider redeployment to positions occupied by labour hire workers at the mine, as well as positions at the associated entities of Thiess.

Thiess led evidence that in six months prior and at the time of the redundancies, it had reduced the number of labour hire workers by 200. Thiess emphasised that given the nature of the changes to the coal market, it continued to use a segment of labour hire workers on a daily basis to service their contracts. Thiess explained that it needed to be operationally responsive to the contractual directions of the client, and the labour hire contracts provided for flexibility.

The Commission rejected the injured employee’s assertions that his role was still required to be performed because labour hire workers’ performed some of the duties previously comprising his role. In relying on the authority in Ulan Coal Mines No. 1, the Commission held that:

“An inquiry (into whether the job is required to be performed) is not directed to whether there are duties left to perform, rather that the inquiry should be to whether the actual job remains after the restructure.”

Further, the Commission rejected the injured employee’s submission that Thiess ought to have displaced labour hire workers to redeploy the injured employee in its business or the business of an associated entity. The Commission accepted that Thiess had provided a list of the redeployment opportunities within Thiess, however the injured employee did not engage in any discussion regarding redeployment.

Click here for the decision.

Lessons for employers

The decision is encouraging for employers and highlights the increasing importance in the current economic climate of maintaining flexibility in workforce structures. Further, the decision serves as an important reminder to seek advice on often complex consultation and other requirements before commencing a workforce restructure.

If you need assistance regarding redundancy or workforce restructure, contact one of AREEA’s experienced employee relations practitioners for assistance.  Effecting dismissals will also be workshopped as part of the upcoming industry briefings in Townsville, Newcastle and Brisbane. To register your attendance, click here.

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