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Excerpt from this article first published in Human Resources Magazine, Issue 133 - 24 July 2007
The Australian Industrial Relations Commission (“AIRC”) has found that the dismissal of a software engineer who refused three reassignment requests was not for “genuine operational reasons” and the employee was able to proceed with his unfair dismissal claim.
The employer, Boeing Australia, terminated the employee after he refused three reassignment offers made to him by Boeing Australia as the project he was working on was ending.
Boeing Australia submitted that because the employee refused the three reassignment offers, there was no longer any work that the employee could perform for the company. Boeing Australia argued that its subsequent termination of the employee's employment was for "genuine operational reasons" and the employee was precluded from bringing an unfair dismissal claim.
The AIRC held that if the employee had accepted the reassignment, further and continuing work would have been performed by the employee and accordingly, it could not be said that the employee was terminated for a "genuine operational reason". The AIRC found that the reason for the dismissal was the conduct of the employee in not agreeing to be reassigned in accordance with Boeing Australia's requests.
It was also noted by the AIRC that there will only be a "genuine operational reason" for dismissal if the operational reason has a discrete existence. In this case, the AIRC found that the reason relied upon by Boeing Australia was interlinked with the dispute over the reassignment of the employee and accordingly, the reason was not a discrete genuine operational reason.
As a result of the AIRC's findings, the employee is now able to proceed with his unfair dismissal claim. The unfair dismissal claim has not yet been determined by the AIRC.
This case shows that employers must act carefully when terminating employees for “genuine operational reasons” and should consider whether there is continuing work that the employee can still perform.
Jessica Lee
Lawyer
