Worker disputes dismissal, claims it wasn’t genuine redundancy
A worker recently filed a dismissal claim against his employer, saying that his termination wasn’t a case of genuine redundancy. He also said that he was notified during a meeting and a subsequent text message exchange, which made the dismissal harsh and unfair.
On August 11, 2023, Ty Korteman filed an application before the Fair Work Commission (FWC), alleging that his termination from United Slabs Victoria Pty Ltd on August 8, 2023, was unjust, harsh, or unreasonable.
The employer disputed these claims, contending that the termination falls under a genuine redundancy.
United Slabs Victoria Pty Ltd operates in the domestic construction industry, serving the Western suburbs of Melbourne. Prabhdeepak Singh, the owner and business director, represented the employer. Korteman started his employment with United Slabs Earthmoving Pty Ltd on August 8, 2022. In July 2023, a business transfer occurred, including the worker's employment terms, conditions, and entitlements, facilitated by Singh.
According to records, on August 7, 2023, the employer informed Korteman in a 3-hour meeting about cost-cutting measures and the intention to terminate his employment.
Later that day, a text message exchange occurred between Singh and Korteman, confirming the decision. The latter asserted outstanding entitlements, leading to a claim of $30,704.26, less applicable tax.
Text messages with the employer
Singh to Korteman: “From today meeting, I decided to cutting back, a lot of things not going right from last 7 months, whatever pending payment will be sorted tomorrow, if you think of anything pending let me know Thanks for helping”
Korteman: “Are you saying I’m fired? Until you confirm this with a company letterhead. It doesn’t count. What looks like you’re firing me, and I’m still trying to give you correct advice.”
Singh: “Hard decision for me. Working together from nearly two years, at this stage, I think it is the best decision.”
Korteman: “I hope your sitting down! This is not going to be cheap either.”
On August 9, 2023, Korteman received a termination letter, citing redundancy, and indicating payment of outstanding pay, entitlements, and a notice period of 4 weeks.
A subsequent redundancy payment of 4 weeks was made, bringing the total gross payment to $33,771.73.
The employer submitted that, due to operational and financial considerations, a review of costs and staffing levels was conducted around July 31, 2023. The business determined that the worker's role could be reallocated, leading to the decision to remove the role as it was no longer required.
Worker unaware of employer’s finances
The employer said this was a case of genuine redundancy, stating that the worker's role was no longer necessary, he was award-free, there was consultation, and no alternative positions were available.
Meanwhile, the worker claimed he didn’t know about the employer's financial, employment, or organisational issues.
Despite his denial of awareness, the Commission found that Singh had previously proposed a salary reduction, which he declined. The employer said it respected his decision but contends it forced them to explore other cost-cutting measures, ultimately resulting in the redundancy decision.
When is there genuine redundancy?
According to the FWC,
(1) A person’s dismissal was a case of genuine redundancy if:
(a) The employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s-enterprise; and
(b) The employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:
(a) The employer’s enterprise; or (b) The enterprise of an associated entity of the employer.
In this case, the FWC said that “it is not contested that the employer was seeking to reorganise and reduce costs.”
“Singh has provided evidence of the reorganisation of the role and duties of the worker to himself and another member of staff,” it said.
“The role of the [worker] was made redundant and that the reason for this decision was the operational needs to the enterprise,” it added.
Thus, it said that the worker’s dismissal was a case of genuine redundancy. It then dismissed his application against the employer.
