Employee’s termination by employer found unfair because it was not a genuine redundancy and compensation awarded.

The Commission has awarded $39,750.95 as compensation to an employee, following her employer’s decision to terminate her employment. The Commission found the termination was not a genuine redundancy because the employee’s role continued to exist after her termination and another person was employed in the role, undertaking the same duties.

Background

The applicant commenced work with the respondent in March 2020, under an ongoing contract as a Coordinator.

On 26 February 2021, the applicant was informed that her position was no longer required due to a change in circumstances and her employment was terminated effective the same day.

Contentions

The applicant contended her termination was unfair because it was not a genuine redundancy.

A previous employee of the respondent gave evidence in the applicant’s case. This employee held the Coordinator role prior to the applicant, from 2018 to 2020. He gave evidence that the respondent contacted him in December 2020 to inform him that it wished to engage him once again. He recommenced employment with the respondent in the position of Coordinator, deposing that his duties were the same as those he undertook on the first engagement in this role and were the same as the applicant’s duties.

The employer stated that the applicant’s termination was not unfair because the applicant was made redundant as the applicant’s position was no longer required.

Findings

The Commission found that the termination of the applicant's employment was not a genuine redundancy because the applicant’s role continued to exist and had not been changed or been modified in any way, and the respondent engaged another person to undertake the role immediately after terminating the applicant’s employment.

The Commission noted that, on the evidence, it was not practicable to reinstate the applicant. The Commission found the applicant had suffered loss because of the unfair dismissal and should be awarded the sum she would have earned had her employment continued. The Commission awarded the applicant $39,750.95, being the maximum amount available under s 23A(8) of the Industrial Relations Act 1979.

The decision can be read here.