After almost three years of employment, the owner of a thoroughbred stud provided his horse trainer with a letter of redundancy, providing three weeks’ payment in lieu of notice, plus entitlements. It was explained that the redundancy was not a reflection on the trainer’s performance but due to organisational requirements.
What could possibly go wrong? Apparently lots! It was unfortunate that the dismissal came two days after the trainer had provided his employer with a WorkCover certificate recommending office duties and stating he was unable to handle horses. The trainer argued the dismissal was not a genuine redundancy as it was caused by his injury and that new employees now performed some of his former duties.
But let’s move on from who said what. The end decision was two-fold. Firstly, the employer failed to comply with the consultation provisions as detailed in the Horse and Greyhound Training Award 2010(Award). Secondly, the trainer was not provided with an available redeployment opportunity at a lower level.
Interestingly the Fair Work Commission Deputy President accepted that operational changes to the business meant the trainers position was no longer required. However, an “informal chat” is insufficient consultation and does not comply with the terms of the Award.
The employer went on to admit he did not offer the trainer a farm-hand role as he believed he would have been “insulted” by the proposal. The test for considering alternative positions for redeployment is not satisfied by presumption!
It was argued that the employer was a small business as justification for his ignorance of the Award, the Fair Work Act 2009 and the Code. The Commissioner’s response was that pleading ignorance as an uninformed employer “simply does not ‘cut it’”.
All of this could have been avoided by a simple consultation process and an understanding of compliance obligations under industrial relations legislation and instruments. Simple advice would have cost much less financially and emotionally than ending up in the Fair Work Commission.
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