Tebikenibeu Low v Menzies Property Services Pty Ltd (U2014/11250) [2014] FWC 7829 VICE PRESIDENT HATCHER

[Amended at applicant’s request 24 August 2020]

Fundamentally this matter was the result of a restructure where two employees were undertaking duties that the company determined only required one person.

In short, the company relied on external benchmarks that suggested a workers’ compensation claims case manager should be able to manage approximately 80 claims, whereas the total of claims open at the time of the review that was being handled by the two positions was only 63. A decision was therefore made by the business to make one of the two positions redundant.

The Applicant argued that it was not a genuine redundancy because:

  • The work he previously performed was still being done by the other remaining Workplace Injury and Return to Work Coordinator, Ms Mathieson. This demonstrated, he submitted, that the employer had not decided that his job was no longer required to be performed by anyone.
  • In deciding to make his position redundant, Menzies wrongly compared his job, and workload, to that of a Case Manager, when the role of a Case Manager was significantly different in nature and not fairly comparable.

I have provided the actual wording of the decision, as is an exemplary example of how to undertake “procedural fairness”:

On 22 July 2014, Mr Low was invited by email to attend a meeting with Mr Borg at about 4:30 pm. He was not advised of the purpose of the meeting. When he attended the meeting, Mr Allan was present. He was advised that it was likely that he would be made redundant, and would need to meet with Mr Borg at 9:00 am the following day. He was handed a letter bearing that day’s date, which stated (omitting formal parts):

“The purpose of this letter is to advise that the Company has undertaken a recent review of its operational requirements in light of various cost and profitability issues facing the business.

As a result of this review, the Company is considering a restructure which we anticipate will involve the position of RTW becoming no longer required by the company.

Unfortunately, a potential outcome of this restructure is that your position may be redundant. Your position has been selected taking into account the needs and objectives of the business.

We are giving consideration to whether there are any other available positions in the business or associated entities for which you are qualified and suited. At this stage, we have not been able to identify any available positions.

However, we would first like to consult with you regarding the potential redundancy including any measures that may be available to avert or mitigate adverse effects on you.

Therefore, I am advising you that a meeting will be held with you at 9 am Wednesday 23rd July 2014 at the Kensington Office to discuss these matters.

Subject to the consultation process, your employment may be terminated by reason of redundancy.”

Mr Low met with Mr Borg the following day at 9:30 am as directed. He brought Ms Lucy Gildersleve with him as a witness.

Mr Borg advised Mr Low that he has been made redundant effective immediately.

Later on 23 July 2014, Mr Low was provided by Menzies with a termination letter bearing that day’s date and signed by Mr Borg which stated (omitting formal parts):

Mr Low submitted that his dismissal was not a case of genuine redundancy for

I will deal with these submissions in turn.

I reject the first submission. It is well established that the fact that the duties of a particular job or position which has been abolished have been re-allocated to another position or positions as part of an employer’s restructure does not alter the fact that the employer no longer requires that position or job to be performed by anyone. Here, Menzies had two positions of Workplace Injury and Return to Work Coordinator. It has decided to abolish one of those positions, and have the holder of the remaining position perform all of the work previously done by both the position holders…

The second submission is not relevant to my consideration. It is not the function of the Commission, in determining whether a dismissal is a case of genuine redundancy, to form a view about the merits of the decision to make a position redundant. Whether it was objectively fair or justifiable to decide to abolish a position is beside the point, as long as the employer acted as it did because of changes in its operational requirements. [My emphasis].

I find that Mr Low’s dismissal was a case of genuine redundancy. His application must therefore be dismissed, and I so order.

Commentary

  • The company also used very good procedures to ensure that procedural fairness was applied.
  • And finally, we now have a benchmark for the number of RTW coordinators we need!

Greg Reiffel Industrial Relations & Human Resources Consulting has been providing the following services to businesses for over 30 years:

 

  • General HR and IR advisory service.
  • Fair Work Commission representation (eg unfair dismissals, adverse actions, etc.).
  • Workplace investigations and mediations.
  • Policies and procedures.
  • Discipline & Termination.
  • People Audits (are you at risk of prosecution?).
  • Enterprise Agreements, Contracts of Employment, Individual Flexibility Agreements.
  • On-site HR services.

Contact Greg on 0438 906 050 or mailto: greg@gregreiffelconsulting.com.au.