A recent decision of the Fair Work Commission has found a bookkeeper was not unfairly dismissed due to the potential unreasonableness of a small business employer having to provide at least 6 months TAFE training to enable her to be redeployed in a new role.
Ms Kaye Wilson had been employed by Mackay Taxi Holdings Ltd as a Bookkeeper before she was retrenched on 24 April 2013. Ms Wilson’s positio
n was made redundant as a result of Mackay Taxi Holdings deciding to create a new higher level bookkeeping position requiring Certificate IV qualifications, which Ms Wilson did not hold.
Ms Wilson challenged the proposition that she was unable to perform the new Bookkeeping position. She also challenged the ability of the new employee appointed to the new position, asserting that they would be no more qualified than her for the position since they would require training to operate in the taxi industry.
Ms Wilson submitted that since her redundancy, one female administrative employee had been upgraded from part time to full time, an office trainee was kept on full time at the end of her traineeship, and a foreign taxi driver was sponsored to work part time in the office. She asserted that these three roles could have been combined into one full time position for her.
Ms Wilson contended that it would have been reasonable for Mackay Taxi Holdings to have redeployed her to the new Bookkeeper position. She submitted that the company had previously paid for training of other employees and should have been prepared to pay for her to gain Certificate IV qualifications. Mackay Taxi Holdings claimed that to obtain the relevant qualifications, it would require a minimum of twelve months of study. Ms Wilson refuted this, claiming she could have completed the course in six months or less because of her previous experience.
Commissioner Simpson considered whether it would have been reasonable in all the circumstances for Ms Wilson to be redeployed as per section 389(2) of the Fair Work Act 2009. This included a consideration of whether it was reasonable for Mackay Taxi Holdings to provide the necessary training to Ms Wilson in order to enable her to assume the duties of the newly created Bookkeeper position.
In response to Ms Wilson’s claim that employment of additional administrative staff following her dismissal demonstrated there were vacancies that she could fill, Commissioner Simpson referred to the Full Bench decision in TAFE NSW v Pykett  FWCFB 714 in stating the position needed to exist and be identifiable at the time of termination.
Commissioner Simpson considered the Full Bench decision in Ulan Coal Mines v Honeysett  FWAFB 7578, where it was stated that the employee being redeployed should have the skills to perform the job to the required standard either immediately or with a reasonable period of training. The Commissioner was of the opinion that even in the best case, there was a reasonable prospect that Ms Wilson would not hold the qualification for the new role for 6 months. He considered this to be an unreasonable length of time in the circumstances.
He noted that there was a significant difference between Mackay Taxi Holdings paying for short courses specific to employee’s particular jobs, and paying for a nominally 12 month certificate IV TAFE Course.
Therefore, Commissioner Simpson was satisfied it was reasonable for Mackay Taxi Holdings to advertise the position in order to engage an employee who held the qualifications required instead of redeploying Ms Wilson. In coming to this conclusion, he considered the fact the company was a small business employer and redeploying Ms Wilson would have placed an unreasonable burden on the company.
Lessons for employers wanting to act fairly
It is important for employers to be aware that under section 389(2) of the Fair Work Act, the Commission may find a redundancy is not genuine if it would have been reasonable in all the circumstances for an employee to have been redeployed within the employer’s enterprise or the enterprise of an associated entity of the employer.
In determining whether it was reasonable for an employee to be redeployed, the Commission will consider:
whether there was an identifiable position for the employee to be redeployed into at the time of termination; and
whether it was reasonable for the employer to provide training to an employee to enable them to be redeployed.
In deciding whether it was reasonable for an employee to be redeployed, the Commission may consider the size and means of the company as well as the length and cost of any training that would need to be provided.
Wilson v Mackay Taxi Holdings Ltd T/A Mackay Whitsunday Taxis  FWC 2425 (16 April 2014)