Employer didn't provide interpreter or support person to assist worker
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case that raises important questions about redundancy processes and the treatment of casual workers.
The case involved a migrant worker who argued his dismissal was not a genuine redundancy, citing lack of consultation and the simultaneous hiring of a new employee.
The worker also claimed the employer failed to consider his vulnerability as a migrant with limited English skills.
Migrant worker’s ‘casual’ status
The case centered on a casual factory hand working in a meat processing plant in Keith, South Australia. The worker, a Malaysian migrant with limited English skills, had been employed for nearly two years, working 37.5 hours per week plus regular overtime.
Despite being offered the opportunity to convert to permanent employment, he had chosen to remain casual.
In June 2024, the worker was suddenly called into a meeting without prior notice. He was informed that his position was being made redundant due to cost-cutting measures.
This news came as a shock to the worker, who had no forewarning of any issues with his employment.
The employer, a co-operative in the meat and manufacturing industries, cited an avian flu outbreak as the reason for urgent cost reductions. However, financial records revealed that losses had been occurring for months prior due to international market factors.
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Employer’s decision to hire new staff
A significant point of contention in this case was the employer's decision to hire a new factory hand around the same time as dismissing the worker.
When questioned about this during the termination meeting, the employer briefly mentioned the worker's lack of a forklift license and more limited skills compared to the new hire.
The FWC noted that the worker had been operating forklifts throughout his employment despite failing the license test twice. The employer had allowed this to continue for nine months after the second failed test.
Another key issue was the lack of consultation before the termination. The worker was given no opportunity to discuss the decision or explore alternatives.
The meeting was conducted entirely in English without an interpreter or support person offered, despite the worker's limited English proficiency.
Is it a genuine redundancy?
The FWC found that this was not a genuine redundancy as defined in the Fair Work Act. The decision stated:
"[The employer] decided to add a new labour cost (equivalent to one factory hand) at the same time as it decided to proceed with making [the worker] (a factory hand) redundant."
This inconsistency undermined the employer's claim about needing to urgently reduce headcount.
The FWC also criticised the lack of consultation, noting:
"[The employer] did not meet its consultation obligation in substance or form."
The decision highlighted that even casual employees have consultation rights regarding redundancy under the relevant award. The abrupt termination meeting did not satisfy these obligations.
Employers’ responsibilities towards migrant workers
The ruling also emphasised employers' responsibilities towards migrant workers:
"[The worker] was a migrant worker in regional Australia, on a visa, with limited command of English. Whilst [the worker] has some command of English, his vulnerability as a migrant worker weighs somewhat in favour of a finding of harshness because [the employer] took no steps to mitigate those vulnerabilities despite there being readily available and simple means to do so."
The FWC ultimately found the dismissal was unfair due to both substantive and procedural failings. It ordered compensation of nearly $20,000 plus superannuation.
The decision further commented about casual employees' rights:
"Casual employees, and in particular regular and systematic casuals, have the right to be treated fairly and the right to challenge dismissals if treated unfairly"
Finally, the ruling suggested policymakers consider:
"Where qualifications such as licences gained overseas are not recognised, attention could be given to assisting a migrant with limited English to be able to sit and complete the theory elements of a local licence qualification in a language they can understand."