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14 November 2018
The Fair Work Commission has found that an HR manager who was made redundant after accusing his managing director of having a meth addiction was not unfairly dismissed.
Elton Bizzaca, the former HR and occupational health and safety (OHS) manager of Westelect Services Pty Ltd T/A Westelect Services (Westelect) made an unfair dismissal application to the Fair Work Commission. Westelect said that it had dismissed Bizzaca for reasons of genuine redundancy and therefore the commission had no jurisdiction to deal with his claim.
The first limb of Bizzaca's case was that his redundancy was not genuine because he had not been consulted in line with Westelect's employee collective agreement and there was no reasonable attempt to redeploy him.
The second limb was that the real reason for Bizzaca's dismissal was because of a falling out between him and his managing director, Adrian Cunningham. Bizzaca alleged that around February 2018, he met with Cunningham to inform him that Westelect staff, including the operations director, Kingsley Morcombe, had become increasingly worried about Cunningham's erratic behaviour. During that conversation, Bizzaca suggested that Cunningham had a meth addiction.
In 2018 Bizzaca said he had been approached by Morcombe to buy out Cunningham's shares in the business. The share sale did not eventuate and instead of receiving further information regarding the sale, Bizzaca received a redundancy letter on 3 May 2018.
Role no longer required to be performed by anyone
Deputy President Beaumont found that, despite the souring of the relationship between Cunningham and Bizzaca, the role was indeed no longer required to be performed by anyone because of Westelect's precarious financial position.
At its largest and most profitable, Westelect's workforce consisted of 50 employees occupying full-time and part-time positions. However, by November 2017 there were only nine employees with this number set to drop even further. The economic viability of Westelect appeared to be in question and there was a need to reduce corporate overheads expeditiously.
Westelect said that there were no longer sufficient work duties to occupy a full-time HR or OHS manager and that the functions of that role were easily absorbed by other staff, namely Cunningham. Beaumont accepted this evidence.
No redeployment options
Given the company's financial position, Beaumont found it unsurprising that there were limited alternative positions available within the business.
Bizzaca argued that he could have been redeployed as an electrician as he was qualified in this field. Cunningham's evidence suggested that Bizzaca did not meet the client's requirements, having not worked on a mobile plant.
Beaumont found that the electrician role was unsuitable because Westelect was a small employer facing a grave financial situation and, at a minimum, retraining was required for Bizzaca to be placed in that position. Considering the company's grave financial circumstances, the electrician role was an unsuitable redeployment opportunity.
No obligation to consult
Bizzaca was informed of the redundancy of his role at a meeting where Cunningham said "I think you know what's coming up". The meeting at which Bizzaca was advised of the termination of his employment lasted only 90 seconds.
Beaumont ultimately found that neither the agreement nor any modern award applied to Bizzaca's employment; therefore, there was no obligation to consult.
While an employer's motivation behind a redundancy may be unclear, if the role is genuinely not required to be performed by anyone within the business (eg, for financial reasons), the employer's motivation will not prevent the redundancy from being genuine. However, unlawful motivations may give rise to other types of legal claim.
Employers should be aware that, when considering whether a redundancy is genuine, the onus will rest with them to prove that the job is no longer required to be performed by anyone.
For further information on this topic please contact Emily Bowly or Amie Frydenberg at Lander & Rogers by telephone (+61 3 9269 9000) or email (firstname.lastname@example.org or email@example.com). The Lander & Rogers website can be accessed at www.landers.com.au.
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