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Patrick H.
Patrick H., Lawyer
Category: Australia Law
Satisfied Customers: 5361
Experience:  Dip Law LPAB - Sydney based lawyer
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I work in an international oil & gas company in its office

Customer Question

I work in an international oil & gas company in its office in Perth. There is currently a redundancy exercise due to low oil price, lower activities and cost reduction exercise.
I work in the Contracts & Procurement (CP) Dept under a Procurement Coordinator for Drilling & Operations. Due to no drilling activities in the next two years, 2 out of 3 CP staff in this unit are being made redundant, and I am one of them.
I am challenging on whether the selection is fair.
In practice the CP Dept is "loosely organized" in the sense that the various CP personnel (6 Buyers) handle a host of contracts for various departments and drilling contracts as and when there are drilling campaigns. I believe that this "loose" arrangement is intentional in order to optimize the use of resources. The other staff in the CP Dept are 2 planners and an Admin staff.
In view of the "loose arrangement" and that CP personnel all handle different types of contracts, I feel that I am being "picked unfairly” and "penalized" in this instance, despite my good performance.
Can I challenge if the selection is deemed fair just because I am in that slot? Or should all Buyers be placed in a pool for selection based on a pre-determined set of criteria in order to avoid any discrimination?
Submitted: 9 months ago.
Category: Australia Law
Expert:  Patrick H. replied 9 months ago.

Hello and thank you for your inquiry.

Under the Fair Work Act, an employer can make an employee redundant in accordance with the following provision:

http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s389.html

Essentially, if your employer does not need as many staff to do the procurement work as it previously did, such that it determines to reduce the number of staff, then it is entitled to make a worker or workers redundant and it is entirely up to the employer which of its staff it chooses to make redundant. It would only be if you were targeted for discriminatory reasons in breach of anti discrimination laws that you will have a strong basis for complaint that you are being chose for redundancy instead of the person who has been allowed to remain.

Whilst it is true that unfair dismissal claims can arise where redundancy is found not to be genuine, that usually occurs where an employer claims they have made someone redundant, but it is readily apparent that the worker has actually been replaced rather than made redundant.

One avenue that might apply in your case is that most awards require employers to consult with workers about proposed redundancies, and there is plenty of case law that shows that if an employer fails to comply with this requirement then the redundancy will not comply with s.389 above and is therefore not a genuine redundancy, but whilst such a technical breach will allow a party to succeed in an unfair dismissal claim, their entitlement to compensation is likely to be very modest, since aside from the reduncies technical deficiency it was inevitable given the economic climate.

Finally, be aware that although workers do have a right to take action if they are unfairly treated, it is important to understand that such action can adversely affect the worker's reputation within an industry, and careful consideration should therefore be made as to whether or not such action is in the long term interests of the worker.

I appreciate the above may not be the answer you were hoping to hear but it does reflect the law as it applies to your situation based on what you have advised. I trust however, that my advice assists you in understanding the law and helps you decide how to proceed.

Good luck and PLEASE RATE MY ANSWER.

Patrick

Customer: replied 9 months ago.
Thanks Patrick for the prompt answer.
You have not addressed the fairness aspect of my question which is the main concern. I am not questioning the need for redundancy.
In view if the above, as agreed upfront, I request not to be charged, and stop further anawer. Kindly cancel the credit card charge. Thsnk you.
Expert:  Patrick H. replied 9 months ago.

Not to be argumentative but I did address the fairness issue with this sentence:

Essentially, if your employer does not need as many staff to do the procurement work as it previously did, such that it determines to reduce the number of staff, then it is entitled to make a worker or workers redundant and it is entirely up to the employer which of its staff it chooses to make redundant.

In short there is no issue of fairness, the decision is simply a matter for them and they can decide on any basis not in breach of discrimination laws that they choose.

Presumably if you went to your doctor and didn't like his diagnosis you wouldn't expect a refund. The same applies to requests for advice from a lawyer. I appreciate this is not the answer you wanted, but I can only advise on the law which I have done, I therefore ask that you reconsider rating my answer and ensuring that I am paid for my time.

Thank you,

Patrick

Customer: replied 9 months ago.
Hi Patrick,
As mentioned, in my view my main concern on the aspect of fairness was not fully addressed. All six Buyers are doing similar procurement work, but I was "chosen" for redundancy without a pre-determined set of selection criteria. How can it be that it is up to the Employer to choose whoever he want to choose? Isn't this un-fair?
Expert:  Patrick H. replied 9 months ago.

It is unfair, like many of our workplace laws, but it isn't illegal.

In drafting the Fair Work Act, the Federal Parliament determined that it was better not to be overly prescriptive so as not to interfere with the operation of businesses and therefore determined that employers themselves were in the best position to judge which employees to make redundant, and so no rules were set up to ensure a fair approach. Provided they can demonstrate that redundancies are necessary, they can generally make whoever they want redundant.

It is unfortunate and unfair, but that's what the Federal Parliament decided the rules would be.

Patrick

Customer: replied 9 months ago.
In my case, as all Buyers do similar jobs, the Employer can easily prepare a set of selection criteria, such as performance, years of service, loyalty, etc. This would ensure fairness.
I thought Fair Work usually is more compassionate towards the employee's plea. It is surprising to hear that "that's what the Federal Parliament decided the rules would be".
Expert:  Patrick H. replied 9 months ago.

Most tribunals are friendly to the 'little guy' however, the Fair Work Act was drafted under very considerable pressure from industry lobby groups and therefore is not particularly friendly to employees as evidenced by the very modest compensation awarded to employees in most unfair dismissal cases (even when succesful at proving unfair dismissal workers are often only awarded a few weeks wages) and the rules only give them 21 days to bring a case after they are terminated, after which their rights under the Fair Work Act are essentially extinguished. Hardly fair, but the way the Fair Work Act operates. In many ways the protections it offers are near illusory. It allows governments to say they have a fair system in place which gives the worker a right of recourse if treated unfairly, because it is free and on its face prohibits much unfair behaviour, but in reality offers little real compensation or punishment where employers have behaved badly.

Again, I'm sorry this isn't the news you wanted to hear, but it does reflect the law as it applies in your situation.

Please rate my answer.

Patrick

Customer: replied 9 months ago.
Hi Patrick,
In view that the answer isn't what I was expecting and that we have an upfront agreement that I won't be charged if I am not entirely happy with the answer.
As is now, I would have to ask another legal firm regarding my question, which will potentially incur me cost.
To close the deal with you and for your time, I am prepared to be charged 50% at AUD54.50.
Tiong H
Customer: replied 9 months ago.
Hi Patrick, please confirm that the credit card charge is limited to AUD54.50 as per my above note.
Thank you. Tiong H
Customer: replied 9 months ago.
Hi Patrick,
Good morning!Just ti share (for learning), I have got another view as follow:
- However, there may have been several of you doing the same type of work. In this situation, it is good practice for an employer to select a pool of people whose jobs may be at risk and use a fair selection process. This is known as the redundancy pool.
- If your employer didn't do this and you were the only person selected for redundancy, even though other colleagues did similar or overlapping work to you, this might be unfair dismissal. It might also be discrimination.There is contrast with your answer, just to share.Anyway, I have committed to the 50% payment.Thabks
Expert:  Patrick H. replied 9 months ago.

I note the alternate advice uses the term "might" which suggests to me they are very far from confident they could sustain such a case.

In any event however, even if successful in such a case your damages are likely to be modest.

Nevertheless thank you for sharing this alternate view.

As your payment has now been adjusted to reflect the 50% agreed, please rate my answer.

Thanks & good luck.

Patrick

Expert:  Patrick H. replied 9 months ago.

Hello,

It has been some time since I povided my answer to you, but you haven't rated my answer yet and am wondering if there is anything further I can do for you to ensure a positive rating.

Patrick

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