by Meaghan Spencer and Troy Wild, NRA Legal
Staples Australia Pty Ltd has come under fire after Fair Work Commissioner Ian Cambridge determined that the company had an “unduly hasty and largely tokenistic” approach to meeting its redundancy obligations.
In July last year, Staples tried to address a one million dollar budget over-run by making 12 employees at its Erksine Park warehouse redundant.
Four of the 12 employees successfully pursued unfair dismissal claims after claiming that their redundancies were not genuine.
The company allegedly assessed and selected the employees which were to be made redundant through a “selection matrix”. These 12 employees were made redundant by Staples two days after it was announced to the employees that redundancies were to take place.
The employees claimed that Staples did not follow proper consultation processes outlined in the Staples Enterprise Agreement and that Staples was “too pre-emptory, hasty and unseemly”.
The company disagreed stating that it complied with its obligations under section 389 of the Fair Work Act 2009 and they consulted with the employees.
Commissioner Cambridge agreed with the employees’ views stating that the redundancy process was “astonishingly fast”.
“Staples management did not engage in genuine or meaningful consultation with its employees and their representatives, but instead it made disingenuous gestures which it sought to portray as consultation,” he said.
“Employees were first told one day, and individuals were selected for redundancy the next day”.
Commissioner Cambridge went on to say that Staples consultation process was so “significantly non-compliant as to be grossly deficient”.
Commissioner Cambridge was also critical of the employer for failing to consider redeployment options. Seven months prior to the redundancies, the company employed 19 new employees who were to perform a similar role to that of the employees whom they made redundant.
Staples was bound to bring the new employees on board by a section of their enterprise agreement which committed Staples to hiring 20 new full-time and part-time employees. Commissioner Cambridge suggested that the company should have redeployed the employees to these roles, however the company did not consider this option.
“The process which Staples adopted for the implementation of its decisions to restructure the warehouse and which led to the selection of 12 employees who were made redundant was so severely flawed that the consequential dismissals of the [employees] were entirely unreasonable,” he said.
Commissioner Cambridge explained that “This unreasonableness has been compounded by the manifest failure of Staples to comply with the consultation obligations of the agreement, and consequently the dismissals of the [employees] were also unjust.”
“Further, in the circumstances of this case, the [employees] could have reasonably been redeployed into positions which Staples were obliged to fill before 31 December 2016, and the failure to consider this reasonable redeployment has meant that the dismissals of the [employees] were also harsh”.
The four employees were re-instated and Staples were forced to back-pay the employees.
Redundancies can be often be a long and complicated process. As demonstrated in this matter, it can be difficult to fully understand your obligations when it comes to redundancy and often the rules will change depending on whether you are covered by an Agreement or an Award.
If you are considering redundancies, or need further clarification and help in this area, contact one of our workplace advisors on 1800 RETAIL (1800 738 245).