When is a staff complaint a dispute?
FWA decision to impact redundancy clauses for future Enterprise Agreements.
Tuesday 09 August 2016
Fairwork Australia will allow a miner who was made redundant by Thiess at Curragh coal mine in November 2015 to challenge his redundancy.
However, this week's decision by FWA was less about the validity of his redundancy, than it was about his right to challenge it in the court.
Specifically, the issue here was whether Site Safety Representative for the CFMEU, Mr James Lever lodged a dispute with FWA before becoming redundant - which according to the relevant Enterprise Agreement is the time frame required to challenge it.
Thiess argued that before November the 5th, Mr Lever had only complained about or “discussed” the decision rather than formally lodging a dispute - which they argued were two different things.
On around the 5th October Mr Lever, was one of 150 people who lost their job at the mine in response to the mining downturn.
In the month before finishing up, Mr lever had several meetings with Thiess management to express his disappointment at being made redundant.
In particular, Mr Lever had trouble believing that he had scored in the bottom 25 percent in a Thiess assessment of his performance in safety, punctuality, teamwork and operating ability.
“I have no idea what my supervisor has written in that assessment and, quite honestly, I don’t believe I was in the bottom 25 percent of the workforce, I find that laughable, ludicrous,” he said.
During the meetings Mr Lever repeatedly requested access to his assessment so that he could challenge it, but when it was denied, he told Thiess he intended to take it further.
What he meant by “taking it further” was the issue discussed by FWA.
Mr James Armstrong, Site Manager, at Thiess maintained that a conversation with an employee about an issue where there are differing points of view is a disagreement, not a dispute, and maintained that 90% of the conversations on site involve differing points of view.
However, FWA backed Mr Levers claims.
“I am satisfied on the basis of the evidence before me, that Mr Lever did put the issue of his selection for redundancy in dispute before his employment ended,” Deputy President Asbury said.
“Mr Armstrong said under cross-examination that he instructed Mr Lever’s supervisor not to provide Mr Lever with the documents that he had requested and to inform Mr Lever that he could seek a “review”.
“I accept that Mr Lever was told that the meeting was a review and that it was not until he attended the meeting that he was told that it was a review of the process and not the decision to select him.
“I also accept that Mr Lever told Mr Armstrong he was going to take the matter further.
“That Mr Armstrong incorrectly assumed that Mr Lever was referring to making an application for an unfair dismissal remedy does not alter the fact that Mr Lever disagreed with his selection for redundancy and told Mr Armstrong that he intended to pursue the matter of his selection and the basis upon which it had been made.”
“In my view, this was sufficient to put the matter into dispute and to enliven clause 7.3 so that Mr Lever could subsequently make an application to the Commission.”
The decision clears the way for Mr Lever to challenge his redundancy as soon as possible.