Neal and Shaw McDonald Pty Ltd and another [2003] NSWIRComm 298

Industrial Relations Commission of New South Wales

CITATION : Neal and Shaw McDonald Pty Ltd and another [2003] NSWIRComm 298 APPLICANT: PARTIES : Toni Neal RESPONDENT: Shaw McDonald Pty Ltd FILE NUMBER: 607 of 2003 CORAM: Sams DP Termination of employment - unfair dismissal - restructure of law firm - redundancy of applicant - payments of redundancy pay - failure to consult - failure to give notice - failure to discuss alternative employment options - admissions of respondent - allegations of poor work performance - applicant's age and workers' compensation injury - length of service and loyalty - difficulties in finding alternative employment - principles of unfair redundancy. CATCHWORDS : Held, applicant's impressive employment history - genuine redundancy - respondent's failure to apply principles of consultation and notice - loyalty of employee - work performance never a consideration in the dismissal - performance issues not taken into account - consideration of age, length of service, injury and prospects for future employment - payment of minimum redundancy pay not relevant to unfairness of dismissal - redundancy pay directed towards different and discrete objectives - dismissal 'harsh and unjust' - reinstatement considered, but not practical - applicant's efforts to mitigate loss - compensation ordered - unacceptable language used in the workplace. LEGISLATION CITED : Industrial Relations Act 1996 Employment Protection Act 1982 Hollingsworth v Commissioner of Police No.2 (1999) 88 IR 282 Kenefick v Australian Submarine Corporation Pty Ltd (No 2) (1996) 65 IR 366 Lend Lease Investments Pty Ltd & Ors, Re Cannon & Ors (1986) 14 IR 301 Little v Commissioner of Police (No.2) [2002] NSWIRComm 52 McLaine v David Jones (Australia) Pty Ltd [1993] AILR 98 Outboard World v Muir (1993) 51 IR 167 CASES CITED : Quality Bakers of Australia Ltd v Goulding and Another (1995) 60 IR 327 Re Redundancy Awards (1994) 53 IR 419 Shop, Distributive and Allied Employees' Association, New South Wales and W D & H O Wills Holdings Ltd [2000] NSWIRComm 98