Discrimination in the workplace is common not only to ethnic groups but to any person in the mainstream community. It can happen to many of us, as key players in the workplace or other forum. This dispute can arise within the workplace and applicants may have a proper claim under section 365 with dismissal and with section 372 without being dismissed from the employment of the Fair Work Act (2009) (‘the Act’). This case is currently underdetermination and to protect the identity of the parties, I did not disclose the names and the actual facts.
Jordan is employed as Despatch worker in a big import and export business. These imports consist of goods coming from China such as cookware and cutlery of different brands. His job is to pick and pack the goods for further distribution in the retail industry.
He started in 2000 and in 2005, he had a work-related injury while packing and unpacking goods.
He filed a work cover claim and he was moved immediately to light duties consistent with Treatment or Work Plan under the supervision of the general practitioner. This GP tells him what he can do about his job and with his injury during the rehabilitation plan. In this case, the GP put a restriction on his work plan not to work beyond normal hours. The employer has more than 30 workers and the business is going well with a high level of overtime until 2018. Jordan was offered overtime prior to his being made redundant but refused as he was not allowed under the modified work plan.
One Division of the company is not making money and the employer decided to make some redundancy and make some change/s in its workplace.
Jordan employed as Despatch Worker being under work cover claim came to the employer’s mind among others. On 1 January 2018, Jordan was called to the office and handed the redundancy letter claiming that his job is no longer available. He was given all his entitlements.
Is the employer correct in making the injured redundant because of the business downturn?
Sections 340, (workplace right), 341 (meaning of workplace right) and 342 (1) (adverse action) and section 351 (1) (discrimination) of the Fair Work Act (2009) (‘the Act’).
We submit that Jordan has the right to file an adverse action claim under section 365 of the Act.
Jordan has under the circumstances, entitlement to a work cover due to his work-related injury including his right to refuse overtime beyond 38 hours.
This WorkCover claim and the refusal of overtime are workplace rights under s340 and 341 and discriminatory under section 351 of the Act.
Jordan should not have been made redundant as he is in the stage of rehabilitation.
The employer claims that Jordan was not forced to accept overtime and his position is no longer available. This means that his position is abolished.
Our submission is that he should not be fired and made redundant as Jordan is able to take light duties with other position. Besides, pick and pack job is always available with the nature of the business.
So, it is a question of genuine redundancy. This case is not determined or heard yet but under process under section 365 of the Act.