TAFE member wins back job in blow to forced redundancy
9 July 2014
In rejecting TAFE鈥檚 arguments about the nature and scope of the reinstatement order, the Full Bench found that it is not necessary to specify a position to which an employee could have been redeployed, and that it is sufficient to identify 鈥榦ther work鈥 to which redeployment would be reasonable.
In his concluding remarks, Justice Ross rejected TAFE鈥檚 argument that there was no job available:
鈥淚n remitting the matter to Commissioner McKenna we have considered the appellant鈥檚 submission that it is implicit in the Commissioner鈥檚 decision that there was no position to which [the member] could have been redeployed, but we do not find that submission persuasive鈥
鈥淔urther鈥here is an onus on the employer to adduce evidence of the employee鈥檚 job no longer being required to be done by anyone in the employer鈥檚 enterprise, and as to whether there was a job in that enterprise or associated entity, to which it would have been reasonable to redeploy the dismissed employee. Evidence in relation to the latter would usually include canvassing the steps taken by the employer to identify other work that could have been undertaken.鈥
When the matter went back to Commissioner McKenna in March to determine if our member was unfairly dismissed, consistent with the decision of the Full Bench, TAFE attempted to have the case reheard with new material quite different to that previously raised. This was contrary to the appeal decision.
When the matter went back to Commissioner McKenna in March to determine if our member was unfairly dismissed, consistent with the decision of the Full Bench, TAFE attempted to have the case reheard with new material quite different to that previously raised. This was contrary to the appeal decision.
TAFE argued that the legislative powers of the Commonwealth cannot be exercised to destroy the capacity of the states to function as a government 鈥 that is, to manage its employees by application, for example, of the Managing Excess Employees policy.
If these arguments were successful they would have had enormous consequences for every state employee throughout Australia that falls within the federal employment jurisdiction.
Commissioner McKenna made no finding on this point, referring to legal authority that such a matter should have been raised earlier, but determined that the member had been unfairly dismissed and should be reinstated in no less favourable a position and receive all her entitlements.
TAFE, however, ignored the order and after the compliance date lodged applications in the Federal Court for a stay (put the decision on hold) pending a judicial review.
In refusing TAFE鈥檚 application, Justice Perram stated there were no 鈥榚xceptional circumstances鈥 and though TAFE had 鈥渁n arguable case鈥 the balance of convenience plainly does not favour TAFE鈥.
He went on: 鈥淓ven if I had otherwise been satisfied that TAFE was entitled to a stay, I would refuse the application due to its delay in applying鈥 Waiting for two weeks, until such time as it had already committed an offence under the Fair Work Act, was a delay which is simply inexcusable in an application such as the present.鈥
The member has now returned to work with the judicial review continuing before the Federal Court.