Experienced customer service rep asks why she was axed instead of lower ranks
The Fair Work Commission (FWC) recently dealt with a case to determine genuine redundancy, after the worker questioned her employer’s decision to dismiss her instead of her casual co-workers.
The worker, Mary-Ann Bowler, said she had experienced an unfair dismissal from her employment with Trojan Wake Ski and Snow Pty Ltd.
Events leading to this claim trace back to 16t August 2023, when Bowler was asked to attend a meeting with the business owner.
During this meeting, she was informed that her position was deemed redundant. In lieu of the customary notice period, Bowler received two weeks' pay.
She started her employment with Trojan Wake Ski and Snow in or around December 2021 and held the role of a customer service representative.
Her responsibilities included in-store customer service, online customer inquiries, roster management, and handling warranty-related matters.
Bowler recounted the circumstances surrounding the termination of her employment, stating that her manager informed her via a phone call on 11 August that the business was currently facing challenges.
She was tasked with seeking input from fellow employees to devise strategies to enhance the company's profitability. No formal documentation or indication of an impending redundancy had been provided to her.
Subsequently, almost a week later, Bowler met with the owner, who disclosed that the business was experiencing financial difficulties.
As a result, she was served a two-week notice of termination. After questioning the basis of her selection for redundancy compared to several casual employees, she was informed that her role could be distributed among the remaining staff.
The worker had not received any prior notice or indication of the impending termination before this meeting. Instead, she received a text message from the management, confirming her nonattendance requirement during the notice period, and an email from the owner.
The employer cited the following reasons for the worker's redundancy:
The employer emphasised that its decision was made in response to genuine business needs and was not a reflection of the worker's capabilities or performance.
According to the Commission, a person’s dismissal was a case of genuine redundancy if:
(a) the person’s 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.
Moreover, 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.
It said genuine redundancy is a complete defence to an unfair dismissal application if the employer can also prove this claim.
Upon investigation, the FWC found that the business owner’s arguments “do not provide any sound evidentiary basis upon which [it] could be satisfied that Bowler’s position was made redundant because of changes in operational requirements.”
“Frankly, the statements look like a computer-generated collection of management buzzwords and contain almost nothing of substance relevant to these proceedings,” the FWC said.
It said it wasn’t satisfied that Trojan Wake Ski and Snow made a decision that it no longer required Bowler’s job to be done by anyone because of changes in the operational requirements of the employer's enterprise.
“The employer’s genuine redundancy defence must fail,” it said. Thus, it referred the worker’s case for hearing on the merits.
