FWC rules that early selection for redundancy constituted adverse action

FWC rules that early selection for redundancy constituted adverse action

The Federal Circuit and Family Court of Australia has ruled that a company took adverse action against two employees by selecting them for redundancy, partly due to their activities as union delegates. The Court also ruled that the company breached the prevailing enterprise agreement by failing to pay redundancy entitlements and comply with provisions governing Rostered Days Off (RDOs).

The two employees, ‘DN’ and ‘DB’, were employed in the construction division of United Lift Services Pty Ltd (“United”), a lift company that provides lift and escalator installation and repair services.

DN commenced full-time employment with United on 20 February 2021 as an electrician and was a member of the Communications, Electrical, Energy, Information, Postal Plumbing and Allied Services Union of Australia (CEPU). DB was employed by United as a fitter and was a member of the Automotive, Metals, Engineering, Printed and Kindred Industries Union (AMWU).

On 18 June 2021, both employees were elected as the initial delegates of their respective unions.

In 2019 United was the target of an enterprise bargaining campaign by the CEPU and the AMWU, resulting in a registered agreement being the United Lift Services Pty Ltd NSW installation and Service Division Enterprise Agreement 2021. The agreement included particular provisions such as the introduction of a 36-hour week, increased rates of pay, consultation around RDOs, and mandatory payments into an industry redundancy fund.

In July 2021, United advised employees in writing that they were seeking to make two positions redundant in the construction division and sent out an expression of interest in relation to voluntary redundancy. If an employee was interested, they were to contact their supervisor by 5 pm on 28 July 2021.

On that day, just after 1 pm, DN and DB were advised that United’s NSW Manager had made the decision to terminate both employees.

Justice Douglas Humphreys largely accepted the submission on behalf of the two employees that they had made numerous workplace complaints to management in respect of a number of issues. These included the progress of enterprise bargaining, unlicensed employees certifying and checking electrical work, management of COVID-19, an apprentice being sent to do calls on his own and not being supervised, as well as incorrect pay classifications.

As Justice Humphreys summarised,

“The Court does not accept the evidence of Mr Ellis and Mr Hermus that the protected complaints and industrial activity of Mr (N) and Mr (B) did not form a substantial and operative reason for their dismissal which constitutes adverse action within the meaning of s 342 of the Act”.

In relation to claims from United that the selection process was valid, Justice Humphreys noted with regard to one of the delegates, “The Court is satisfied that Mr (N) was marked down with the intention of ranking him below other workers such as to justify him being selected for redundancy over other workers”.

Justice Humphreys has requested the parties to submit evidence on the matter of appropriate penalties and compensation to be paid by United to the employees.

Australian Manufacturing Workers Union v United Lift Services Pty Ltd [2023] FedCFamC2G 275 (17 April 2023)

For queries about redundancies, employee rankings and assessment, adverse action, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178, 1300 Wal LAW  or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

Ref: 333.0523

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