Mcwhynie v Arnotts Biscuits Limited [1996] IRCA 152

Mcwhynie v Arnotts Biscuits Limited [1996] IRCA 152

The respondent had a valid reason for terminating the applicants' employment because the contracting out of cleaning functions created a bona fide redundancy based on operational requirements. However, the respondent contravened s170DE(2) because it failed to consult or provide information to the applicants or their union in accordance with the applicable award, enterprise agreement and consultative arrangements; kept employees unaware of the contracting-out proposal until only days before implementation; gave the decision and termination advice at the same time; failed to discuss measures to avert or mitigate adverse effects; and did not consider the individual circumstances or...

Jurisdiction
Australia
Judgment Date
26 April 1996
Procedural Posture
Applications Pursuant to S170 EA of the Industrial Relations Act 1988 Alleging Unlawful Termination of Employment / Reasons for Decision and Minutes of Order; Reinstatement Ordered and Calculation of Lost Remuneration Adjourned
Outcome
Applications upheld in part: valid reason for redundancy found, but the terminations were held harsh and unjust under s170DE(2); reinstatement ordered and lost remuneration calculation adjourned.
Legal Topics
['unlawful Termination' 'valid Reason' 'operational Requirements' 'redundancy' 'harsh, Unjust or Unreasonable Termination' 'consultation Obligations' 'reinstatement' 'lost Remuneration']
['industrial Law' 'employment Law'] ['unlawful Termination' 'valid Reason' 'operational Requirements' 'redundancy' 'harsh, Unjust or Unreasonable Termination' 'consultation Obligations' 'reinstatement' 'lost Remuneration']

Case Brief

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Procedural Posture

Applications Pursuant to S170 EA of the Industrial Relations Act 1988 Alleging Unlawful Termination of Employment / Reasons for Decision and Minutes of Order; Reinstatement Ordered and Calculation of Lost Remuneration Adjourned

Legal Issues

  1. 1 ["Whether the respondent had a valid reason for terminating the applicants' employment based on the operational requirements of the business" 'Whether the terminations, although arising from genuine redundancy, were harsh, unjust or unreasonable because of the manner, timing and lack of consultation in their implementation' 'Whether reinstatement was an appropriate remedy']

Ratio Decidendi

The respondent had a valid reason for terminating the applicants' employment because the contracting out of cleaning functions created a bona fide redundancy based on operational requirements. However, the respondent contravened s170DE(2) because it failed to consult or provide information to the applicants or their union in accordance with the applicable award, enterprise agreement and consultative arrangements; kept employees unaware of the contracting-out proposal until only days before implementation; gave the decision and termination advice at the same time; failed to discuss measures to avert or mitigate adverse effects; and did not consider the individual circumstances or...

Court Disposition

Applications upheld in part: valid reason for redundancy found, but the terminations were held harsh and unjust under s170DE(2); reinstatement ordered and lost remuneration calculation adjourned.

Orders

  • ['That the applicants in matters 4447 of 1995, 4448 of 1995 and 4449 of 1995 be reinstated by the respondent to another position on terms and conditions no less favourable than those on which they were employed immediately before the termination.' 'That the period between the date of termination and the date of...