Kenefick v Australian Submarine Corporation

This case involved an appeal by the Australian Submarine Corporation (ASC) against decisions made by a Judicial Registrar of the Industrial Relations Court of Australia (IRC) in relation to claims of unlawful termination of employment made by five former employees and their union, Automotive Food Metals and Engineering Union (AFMEU). The Judicial Registrar found the terminations to be unlawful under s.170DC and s.170DE of the Industrial Relations Act 1988 and awarded compensation to each employee. ASC argued that the Judicial Registrar erred in law in relation to both sections and should have dismissed each application. The applicants, on the other hand, contended that the compensation awards were inadequate.

ASC contended that the Judicial Registrar was incorrect in holding that the terminations contravened s.170DC, which requires an employer to give an employee the opportunity to defend themselves against allegations made if the termination is related to the employee's conduct or performance. ASC argued that the terminations were not unlawful under s.170DC because the terminations were not based on the employees' conduct or performance, but rather on the need to reduce the workforce. The Court held that s.170DC did not apply to these cases because the terminations were not unlawful by reason of that section.

ASC also argued that the terminations did not contravene s.170DE(1), which requires an employer to terminate an employee's employment only if there is a valid reason connected with the employee's capacity or conduct or based on the operational requirements of the undertaking. ASC argued that the terminations were lawful because there was a valid reason for the terminations, which was the need to reduce the number of welders based on ASC's operational requirements. The Court agreed with ASC's argument and held that the terminations did not contravene s.170DE(1).

Finally, ASC argued that the terminations did not contravene s.170DE(2), which requires the termination to be harsh, unjust or unreasonable. ASC argued that the terminations were not harsh, unjust or unreasonable because the selection criteria were not unacceptably vague and subjective, and ASC had complied with the spirit of the consultation requirements under clause 28 of the 1989 production award. The Court also agreed with ASC's argument and held that the terminations did not contravene s.170DE(2).

In conclusion, the Court found that the subject terminations did not contravene either s.170DC or s.170DE of the Act, and the applications should have been dismissed. The Court ordered that the application for review be granted, the orders made by the Judicial Registrar be set aside, and, in lieu thereof, it be ordered that the application be dismissed.