TERMINATION OF EMPLOYMENT – genuine redundancy – rehearing – ss.387, 389, 394 Fair Work Act 2009 – seven applications for remedy for unfair dismissal – all applications, except Mr Pemberton’s, filed on 29 July 2015 – Mr Pemberton’s application filed 9 September 2015 – respondent filed response alleging dismissals were genuine redundancies – applications heard together – Commission dismissed applications on 4 May 2016, on basis that it was satisfied each matter involved a case of genuine redundancy – applicants appealed – on 25 January 2017, Full Bench allowed appeal and quashed initial decision to dismiss and referred matter back to Commission for rehearing – as Full Bench decided that termination of applicants’ employment was not a case of genuine redundancy, Commission required to be satisfied the dismissal of each applicant was harsh, unjust or unreasonable – applicants contended there were four main reasons for unfair dismissal: 1) process that led them being selected for redundancy was unfair, not objective or transparent, and partial in application, 2) reasonable for applicants to be redeployed within respondent’s business, 3) respondent failed to consider redundancy swaps, and 4) respondent completely failed to have any regard to applicants’ personal circumstances – Commission considered the Knowledge and Skills Assessment Process (KSA), which was the process used by respondent in selecting individuals who were to be made involuntarily redundant – KSA process involved development of criteria against which employees were scored from 1 to 5 and have scores totalled and ranked against workforce – lowest scoring workers would be dismissed by reason of redundancy – final criteria that was applied to applicants were: positive attitude, attendance, punctuality and reliability, commitment to customer service, supportive team behaviour towards peers and leaders, is proactive and demonstrates initiative, demonstrates value of ‘home safely everyday’, performance record, driver level, technical qualification, time driving, and experience at multiple locations – Commission considered that almost half of the selection criteria were subjective and noted that whilst there was nothing inherently unfair in including subjective criteria, it must be recognised that an otherwise unobjectionable selection criteria could result in unfair outcome if not applied consistently and transparently – held that evidence supported finding that KSA criteria was not applied consistently and transparently – held that KSA process failed through poor execution – Commission agreed with Full Bench that failure of respondent to consider swaps supported finding that terminations of employment were harsh, unjust or unreasonable – Commission held this was not determinative of question whether terminations of employment were, in all circumstances, unfair – Commission held that respondent confined its considerations to matters provided for in Enterprise Agreement, but considered it relevant for respondent to have regard to personal circumstances of each applicant – held that dismissal of Mr Skinner was unreasonable because it was decided upon inferences which could not reasonably have been drawn from material before respondent – held that dismissal of Mr Pemberton was not harsh, unjust or unreasonable because he had a very low KSA, was not interested in redeployment and was only interested in a move to Brisbane – held dismissal of Mr Ross was not harsh, unjust or unreasonable as he had a very low KSA, did not apply for redeployment, and was unable to be offered a swap as he was still in training – held that dismissal of Mr Lucas was unreasonable as he was experienced driver and scored highly on objective criteria in KSA, so it appeared that it was decided upon inferences which could not reasonably have been drawn from material before respondent – held Mr Hill’s dismissal was not harsh, unjust or unreasonable because he had a very low KSA, and a VR or other redeployment options were less viable as he was still in training – held dismissal of Ms Bryant not harsh, unjust or unreasonable as she had a very low KSA and was not seriously interested in redeployment – held dismissal of Mr Preston was not harsh, unjust or unreasonable as he lacked any interest in redeployment and he had a low KSA score – applications of Mr Skinner and Mr Lucas granted and further hearing for remedy to be convened – applications of Mr Pemberton, Mr Ross, Mr Hill, Ms Bryant and Mr Preston dismissed. Skinner and Ors v Asciano Services P/L t/a Pacific National Bulk
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