Unfair Dismissal Claims – Knowing your Employment Rights

I am 58 years old and have been employed by the same company for over 15 years as a supervisor in the production line section. I have under my supervision about 30 workers and leading hands. I reported to the section manager who recently resigned. About one week ago I was told by the CEO of the company of his intention to combine my job with the manager. He told me he did not think I could do the combined job. He hinted to me that I am a bit too old to be trained into a new position. He gave me two options, either to accept a leading hand position or to be made redundant. The leading hand job is two levels below my current position and the pay is substantially less. I do not want to accept either offer and would prefer to try the new job. The CEO indicated to me that unless I let him know which option I will be choosing he will make me redundant. What can I do?

On 2 November 2004 the Western Australian Industrial Relations Commission (WAIRC) awarded the maximum amount of compensation to the claimant in an unfair dismissal claim in the matter of Richards v. Webforge Aust Pty Limited. The facts of this case are quite similar to your case.

In that case the employee had been employed by the same employer for over 20 years and he was made redundant at the age of 60. He applied to the WAIRC alleging that he had been harshly, oppressively and unfairly dismissed.

The employer alleged that the employee was unable to fulfil the requirements of the expanded position due to his lack of management experience or relevant training in the job.

The Commission found that whilst redundancy might exist where a position is changed, it expressed doubt that the criteria for redundancy were satisfied in the case. The Commission found that the employee’s age was one of the factors leading to the employer’s decision to terminate him. The employer’s failure to discuss with the employee about a means to avoid the impact of the redundancy and its failure to give the employee the opportunity to work in the expanded role to ascertain if he could meet the new job requirements rendered the dismissal harsh, oppressive and unfair.

Taking into account the employee’s length of service with the employer, his age and limited prospects of gaining alternative employment, the Commission found that the employer’s payment of a redundancy package of 36 weeks could not be considered as compensation for harsh, oppressive or unfair dismissal. The Commission also found that the redundancy was not genuine and awarded the employee the maximum six months compensation.

This case is a wake up call to employers who fail to recognise the dedication and the length of service provided by loyal employees. The Age Discrimination Act which was enacted by the federal government and commenced in June 2004 expressly prohibits discrimination on age basis in employment area.

If you find yourself in a similar termination of employment position, you should consult a solicitor immediately regarding your options. An employee only has 21 days from the date of dismissal to file proceedings against the employer for unfair dismissal.

I am employed in a small factory. I was recently injured and am currently on light duties. My employer has warned me that he may sack me. What are my rights?

You have rights and should speak to our unfair dismissal lawyers if your employment is terminated because of illness or injury within 6 months of the actual incapacity occurring. Furthermore you have rights where the termination of employment is harsh, unjust or unreasonable.

It is also inappropriate and unlawful for an employer to discriminate against an employee. Termination of employment of an injured employee may be a form of discrimination. If you are terminated in such circumstances you should seek legal advice urgently or apply to the Industrial Relations Commission immediately. Strict time limits apply.

If you have been certified fit for “suitable” duties then it would usually be in the interests of the employer to provide you with such duties if they exist. You should do your best to carry out the special duties you are given as long as they comply with the doctor’s specified duties. If such duties do not exist within the business in which you are employed then the employer is not necessarily required to find suitable duties. In that case, however, you should continue to receive payments of compensation from the workers’ compensation insurance company while you are off work. If you do not receive workers compensation payments then you should seek advice from the workers’ compensation lawyers at Sydney’s Owen Hodge.

I have been working for my current employer for 12 years. I have recently been advised that the company which employs all factory workers including myself is to cease to trade and we are to be transferred to a related company, essentially under the same group, which currently employs people working in the office. Even though I am to keep my job and retain all accrued benefits have I really been made redundant and am I entitled to redundancy payments?

The answer generally in the circumstances you described is “no” if the transmission of business is genuine except there may be specific circumstances which alter that situation. For example if the union representing the majority of the employees has entered into a specific agreement with the employer to transfer employees between the two companies that may alter the normal situation.

However usually when an employee’s position becomes redundant he or she may be transferred to another position, classification or location or may be dismissed. Where the employee is dismissed it is a retrenchment consequent upon redundancy. In such situation the employee is entitled to a retrenchment benefit as prescribed by any governing agreement or industrial award.

This issue has been considered in some detail last year in a case involving Amcor Limited and the Construction, Forestry, Mining and Energy Union. In that case the Court at first instant ordered Amcor to pay full redundancy benefits to all workers who were transferred to another company within the group due to a binding agreement between the Union and Amcor regarding the provision of such payment upon he transmission of business between companies. Amcor appealed to the full bench of the Federal Court of Australia and they failed in their appeal. The Full Court held, in a case of similar facts to your own, that Amcor Limited could and perhaps should have negotiated with the Union for a variation to the usual redundancy obligations prior to transferring its employees from one company to another. However having failed to make any such variation to their previous arrangement with its employees the transference of employees from one company to another operated as an effective dismissal from the first employing company so as to obligate that company to pay redundancy benefits.

The Amcor case is to go to appeal before the High Court of Australia which may affect this advice at some time during the next 12 months or so. However the position currently is that a person in your situation should at least seek advice from a union or solicitor practicing in industrial law to advise the likely benefits payable to you and negotiate such benefits on your behalf.

Employment Law has its own unique circumstances, methodologies and intricacies that usually need the inclusion of an expert Employment Lawyer from the very beginning when an issue arises. We highly recommend an introductory discussion with one of our employment lawyers in Sydney in regard to any Employment Contracts that you may be concerned with.

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