Donato DeIeso v W R WILLIAMS and Co Pty Ltd
[1996] IRCA 135
•14 March 1996
DECISION NO: 135/96
C A T C H W O R D S
INDUSTRIAL LAW - Industrial Relations - termination of employment - genuine redundancy - whether harsh unjust or unreasonable - reinstatement
INDUSTRIAL RELATIONS ACT 1988, ss.170EA, s170DE
DONATO DEIESO -V- W R WILLIAMS & CO PTY LTD
No. SI95/1565
JUDICIAL REGISTRAR: L FARRELL
PLACE: ADELAIDE
DATE: 14 MARCH 1996
INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA )
SOUTH AUSTRALIA DISTRICT REGISTRY
No. SI 95/1565
B E T W E E N:
DONATO DEIESO
Applicant
AND
W R WILLIAMS & CO PTY LTD
Respondent
MINUTES OF ORDER
BEFORE: JUDICIAL REGISTRAR FARRELL
PLACE: ADELAIDE
DATE: 14 MARCH 1996
THE COURT ORDERS THAT:
The Respondent reinstate the Applicant within 21 days.
NOTE: Settlement and entry of Orders is dealt with by Order 36 of the
Industrial Relations Court Rules
INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA )
SOUTH AUSTRALIA DISTRICT REGISTRY )
No. SI 95/1565
B E T W E E N:
DONATO DEIESO
Applicant
AND
W R WILLIAMS & CO PTY LTD
Respondent
BEFORE: JUDICIAL REGISTRAR FARRELL
PLACE: ADELAIDE
DATE: 14 MARCH 1996
REASONS FOR JUDGMENT
This is an Application pursuant to Section 170EA of the Industrial Relations Act 1988. The Applicant claims that his employment was terminated unlawfully. He seeks reinstatement.
The Applicant was one of a number of production workers whose positions were made redundant on 20 October 1995. The Applicant had been employed originally for three years after coming to Australia in 1974. Following a one year break in his service with the Respondent he has been employed continuously for 17 years until the termination of his employment.
At the time of the termination of his employment the Applicant was employed on the automatic chrome line, one of six production lines at the Respondent business. He was under some restrictions following an injury at work in mid 1995 and he was further restricted in the kinds of work he could do as result of a lung condition. There was evidence from his then team leader that he was a good worker.
I accept the Respondent’s evidence that there was a marked downturn in the business of the Respondent by October 1995. I am satisfied on the evidence before me that the Respondent had a valid reason for the reduction of it’s production workforce because of economic necessity.
The Respondent began its process of selecting employees for redundancy by inquiring if any employees were prepared to take a redundancy package. The Applicant expressed some interest in doing so, however no formal offer was made to him. Team leaders were then requested to provide a list of suitable persons although they appeared to be given no clear guidance as to appropriate selection criteria, as some of those selected were chosen on inappropriate grounds. The Applicant was not on the list prepared by his team leader.
Ultimately the Applicant was amongst those dismissed because of the view that he was limited in the work he could perform because of his lung condition and also because he had on one occasion been asked to work on another line and refused.
In selecting the Applicant, no regard was had by the Respondent to the Applicant’s long service with the Company.
Casuals, including short term casuals were treated no differently than long term permanent employees. The Respondent did not consult with its employees or the Union which is a Respondent to the Award that covers the production workers at the Respondent’s premises. On the evidence before me it seems likely that If the Respondent had consulted with the Applicant he would have indicated a willingness to work on other lines and accept training as necessary.
The Respondent appears not to have engaged any objective criteria in selecting employees for redundancy. It seems to have relied heavily on assessments made quickly by those not directly involved in production work. It has attempted to justify the selection of the Applicant after the event by completing an Employee Assessment Criteria Form which it obtained from another Company.
In my view the termination of the Applicant’s employment was harsh, unjust or unreasonable having regard to the following factors:-
The failure to ascertain objective criteria prior to undertaking the selection process.
The failure to give due consideration to alternatives to forced redundancies, such as calling for volunteers, reduction of hours for all employees and providing assistance in finding alternative work for it’s employees.
Failure to consult with the Applicant or his Union, especially because there is clear evidence that he may not have been selected had such consultation occurred. I refer here to the Applicant’s evidence of his willingness to work on other lines if necessary.
Failure to provide counselling or take any steps to avert or mitigate the adverse effects on the Applicant, such as giving him the opportunity to work out his notice, allowing him the opportunity to end his employment in a dignified manner or giving him as much warning as possible of his impending redundancy.
Failure to have any regard to the personal circumstances of the Applicant including his length of service with the Company, the likely difficulties he would face in obtaining other employment because of his limited education and training and his physical limitations and that apart from one year the whole of his work experience in Australia had been with the Respondent.
Failure to consider reducing the number of short term casual employees before making permanent employees redundant.
Remedy
Reinstatement is the primary remedy recognised by the Act. It was put in argument by Counsel for the Respondent that it is impracticable to reinstate an employee where there is a genuine redundancy. I do not accept the argument because production work of the kind performed by the Applicant is still being done at the Respondent’s business.
The Respondent gave evidence that its business continues to be slow and a further reduction in the overall number of production employees has occurred. Most of the production work that could be performed by the Applicant (and I include that work for which the Applicant could be trained such as the zinc line) is carried out for only a few days per week.
The Respondent made something of an issue in respect to reinstatement that the Applicant had stated through his Counsel following the termination of his employment, that the termination of his employment was because he was Italian. Mr Gilbert, Manager of the Respondent claimed that he was deeply offended by the allegation and would have difficulty working with the Applicant in light of it.
Whilst I do not doubt the offence taken by Mr Gilbert I do not regard it as sufficient either alone or in conjunction with any other matter to render the reinstatement of the Applicant impracticable. I think the allegation of racism raised by the Applicant only serves to illustrate the hurt and bewilderment experienced by the Applicant who having not only lost his job through no fault of his own, was given no reason for why he was selected for redundancy ... and cast about for some reason to explain the termination of his employment
There are compelling reasons to reinstate the Applicant, there is little likelihood of him gaining other employment, his loss is one of an almost lifetime job.
The Respondent has failed to satisfy me that no full time job could be made available to the Applicant in it’s business as currently set up. There was evidence that the automatic chrome line continues to operate a few days per week. The Applicant could also work on the zinc line and the manual chrome line with little retraining. The Respondent continues to use casual workers on it’s production lines.
I therefore Order that the Respondent reinstate the Applicant within 21 days.
I certify that this and the preceding 2 pages are a true copy of the reasons for my judgment.
DATE OF HEARING : 15 and 29 February 1996
FOR THE APPLICANT : Mr Blewett
FOR THE RESPONDENT : Mr Manuel
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