Redundancy doesn't cover a multitude of sins
Another of the top 10 from Booth's 101 Rules for avoiding unfair dismissal is "Redundancy is not a panacea."
This colourful story comes from a QLD discrimination case last month (Webb v Lightfoot) rather than unfair dismissal, but the principle is the same.
Lightfoot ran a scaffolding business which employed Webb. When Webb had a back injury (reading between the lines, it seems Lightfoot doubted this), claimed workers comp, and sought light duties, Lightfoot ignored him.
Webb persisted in seeking light duties. Lightfoot's reaction was:
- he became angry and abusive, and suspended Webb for a week for insubordination
- when Webb inquired if this would be put in writing, Lightfoot wrote ‘F... OFF’ on a whiteboard
- when WorkCover contacted Lightfoot, he told them Webb was suspended for “gross insubordination and stupidity”, and when the officer told him about compensation arrangements, Lightfoot lost his temper and abused the officer, to the point of being unintelligible
- he then terminated Mr Webb's employment, without any prior discussion, for "redundancy."
Webb claimed discrimination on grounds of disability. The Tribunal accepted Webb's version of events (confirmed by Workcover records and Lightfoot's cousin who also worked there). Webb was on a 457 visa and had to return to England (the cousin was also under a 457 visa and had a back injury...I see several themes here). Lightfoot told the Tribunal people are made redundant on a daily basis, so he didn’t see how Webb had suffered any loss. Webb was awarded $16,000 ($6,000 for expenses, $10,000 general damages).
What are the (main!) points where Lightfoot went wrong?
- saying "You're redundant!" isn't a magic spell avoiding all comeback by the employee (it doesn't work like "Expelliarmus!" in Harry Potter!)
- anger clouds judgment: if redundancy was a bona fide issue, he should have prepared his position a lot better than that (and see another of the 101 Rules: Don't fire in anger - 21 June 2011 blog)
- as lay people, most often neither I nor my client are in a position to decide who is sick and who isn't - you usually have to take a medical certificate (however uninformative it is) at face value, and work with that if necessary.
Reflection and risk management are much better ways to go.