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COVID-related dismissal was a genuine redundancy

Failed to convince a tribunal his redundancy was not justified.
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COVID-related dismissal was a genuine redundancy

COVID-related dismissal was a genuine redundancy

30 July 2020

By Marise Donnolley

A wildlife sanctuary worker has failed to convince a tribunal his pandemic-related dismissal was not a genuine redundancy.

The worker, who was responsible for coordinating photographs of visitors holding koalas, claimed the company had:

  • failed to properly consult
  • could have redeployed him, or
  • should have stood him down on JobKeeper rather than terminate his employment.


Revenue slump

Lone Pine operates a wildlife sanctuary in Brisbane.

The worker was employed from July 2015 until his dismissal in April this year.

The commission heard the sanctuary had been severely impacted by COVID-19, with monthly revenue down 60% in March.

The business made adjustments to its rosters to keep staff employed, but in late March it received an email from the Department of Agriculture and Fisheries stating: "Animal interactions should be stopped if the activity involves a keeper holding the animal for customer to pat or stroke, or requires a keeper to maintain close proximity to a customer interacting with the animals. These situations would not meet current social distancing requirements."

Lone Pine submitted that "due to the possibility that COVID-19 may spread as a result of physical contact between koalas and guests, the obvious impracticability of sanitising a koala, and the restrictions still in place for international travellers" it was unlikely the worker's role was required to be performed by anyone for an indefinite period of time.

Then, on 26 March, the federal government imposed measures which effectively prevented Lone Pine from opening.

The sanctuary reviewed its structure and made 30 retail positions and 16 administrative roles redundant.


The dismissal

On 27 March letters were sent to affected staff outlining the prospect of redundancies and inviting them to respond.

The worker elected not to respond.

In a termination letter dated April 3, the worker was advised his employment would be terminated. The letter said the sanctuary had attempted to identify redeployment opportunities, but none existed.

The worker argued there had not been genuine consultation, and that he could have been redeployed as he had worked in other areas of the business.

Alternatively, his employer ought to have considered standing him down and done "all things necessary to facilitate him receiving the JobKeeper payment.

The commission heard Lone Pine went ahead with redundancies as it expected tourist numbers would not rebound until 2023.


Decision

Commissioner Simpson found there had been genuine consultation and employees were given an opportunity to respond.

He also accepted there were no alternative vacant positions available, therefore redeployment was not an option.

He said the nub of the worker's argument "is not that a vacant position remained for him to be redeployed into, but more that he should have been offered redeployment into other casual work, in preference to other casuals retaining the work that remained to be performed. That is not the test."

The commissioner ruled the redundancy had been genuine.    


Read the judgment

Samuel McClelland v Kamori Australia Pty Ltd T/A Lone Pine Koala Sanctuary [2020] FWC 3707 (16 July 2020)

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PROTECTION
REASSURANCE
GUIDANCE