| Summary |
UNJUSTIFIED DISMISSAL – Redundancy – Applicants claimed respondent failed to comply with consultation and selection requirements in collective employment agreement (“CEA”) – Respondent argued complied with CEA and union failed to engage with respondent – First issue whether respondent complied with consultation process in CEA – Relevant CEA clause stated union to be notified before notice given to employee to allow for consultation between parties – Respondent argued met consultation obligations by copying all correspondence with affected workers to union organiser (“H”) – Authority accepted bilateral obligation in CEA for union and employer to consult – Authority found respondent notified union by copying all correspondence to H – However, found respondent must do more than notify, as purpose of clause “to allow for consultation between the parties” – Found respondent should have sent copies of correspondence and indicated complying with consultation clause and seeking to progress mutual obligation with union – Found if wrong, when respondent received email from H, was on notice of problem and ought to have responded promptly by seeking to engage union to get process back on track – Found response instead left H to draw own conclusions – Found failure to engage with union once union indicated anxious about position was fatal to obligations under CEA – Found respondent failed to fulfil consultation obligation in CEA - Second issue whether respondent’s selection process met CEA obligations – Authority found CEA required objective assessment of required skills and workers’ skills and abilities, but respondent conceded used subjective view of who was best for company – Found CEA required consideration of “last on first off” principle, but respondent conceded did not consider principle – Found process appeared to have numerical basis for assessing skills against work requirements, but way numerical foundation in fact used meant system not quantitative at all – Found process not transparent – Found one applicant (“P”) scored higher in numerical assessment than employees who retained jobs, so no objective reason for P’s redundancy – Found another applicant (“M”) scored same as another employee not dismissed, so given M’s 20 years’ service, first on last off principle applicable - Found respondent failed to comply with CEA as chose process incapable of delivering required outcomes of CEA – Found furthermore, process itself unreasonable and unfair as held out to be something was not – Dismissals unjustified – REMEDIES – No contributory conduct – Authority found significant evidence of hurt and humiliation and mistreatment – Found applicants subjected to judgement of peers in small community – Found applicants long-serving employees who should have benefitted from last on first off principle in CEA – Reasonable compensation of $10,000 per applicant awarded – Authority found applicants may not have lost positions at all if redundancy process properly applied – Parties ordered to agree on contributions to lost wages – Applicants entitled to amount would have earned for 12 month period from date of redundancy, less other earnings, including compensation under CEA - GOOD FAITH – Applicants claimed subjective decision to make some employees redundant and consideration of irrelevant and unfair considerations constituted bad faith – Authority found respondent’s view mistaken but not malicious – Authority declined bad faith finding - Coalminers |