Workplace Law Report: Analysis of Redundancy and Legal Implications

This report examines a workplace law case concerning redundancy. It analyzes the legal position of an employee, Ken, who faces redundancy. The report explores the relevant rules and legal principles, including the Fair Work Act 2009 and the concept of implied terms in employment contracts. It references key cases such as Barker v Commonwealth Bank of Australia, Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd, UES (Int'l) Pty Limited v Leevan Harney, Morgan v Mineral Technologies Pty Ltd, Australian Iron & Steel Pty Ltd v Banovic, and Construction, Forestry, Mining and Energy Union v Mount Thorley Operations Pty Ltd. The application section considers the specific scenario where Ken, a long-term employee, is made redundant while a less experienced employee, Bob, is retained. The report argues that the 'last in first off' policy is not an implied term and that the employer's decision is fair under the law. The conclusion reinforces that the company did not breach legal provisions by not using the 'last in first off' policy. The report offers a comprehensive overview of the legal aspects of redundancy, contract terms, and relevant case law.

Running head: WORKPLACE LAW
Workplace Law
Name of the Student
Name of the university
Author note

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Issue
The issue in this case is to identify the position of Ken in relation to redundancy
Rules
An employer has the right to terminate employment on the basis of redundancies. The situation
of redundancy occurs when the position where the employee is working is no longer required by
the business or the business is no long capable of sustaining employment.
There are specific criteria which an employer must follow in relation to the process of
redundancy or else the employee would have the right of making a legal claim. The employee
has the right to make a claim of unfair dismissal unless there is a genuine redundancy under The
Fair Work Act 2009 (FW Act).
All contracts has two types of terms namely expressed terms and implied terms. In the same way
employment contract also contain expressed as well as implied terms. Whether an implied term
is present in a contract or not is determined by the court. The presence of an implied term is
determined by the court by analyzing the fact that whether the term is necessary for the
continuation of the contract. If the term is obvious and mandatory for the contract it is an implied
term. The term cannot be held as implied if it is merely just or equitable as provided in the case
of Barker v Commonwealth Bank of Australia [2014] HCA 32.
Another significant case in Australia related to implied terms and commercial custom usage is
the case of Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance
(Australia) Ltd [1986] HCA 14; (1986) 160 CLR 226 where the same principles of implied
terms had been discussed.

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in the case of UES (Int'l) Pty Limited v Leevan Harney [2012] FWAFB 5241 it had been
ruled by the court that where there is genuine redundancy the employer can chose any method to
dismiss an employee unless such measure is unfair or discriminatory in nature with respect to
age, sex , gender , religion, pregnancy or matrimonial status. The case also provided that using
the last on first off policy could lead to age or sex discrimination when it comes to previous
practices of employment of the employer.
the case of Morgan v Mineral Technologies Pty Ltd (2015) FWC 4142 it had been provided
by the Fair work commission that the decision of the employer not to deploy the first on last off
policy did not account to unfair dismissal. The court provided that “This is an irrelevant
consideration for the purposes of this application and it is a selection criterion that in any event
may compromise the productivity of the employer and exacerbate the business difficulties facing
the company. It is not a selection criterion to which the employer gave any consideration
whatsoever.”
In the case of Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165 the employer
wanted to deploy the Last on first of policy in relation to a redundancy situation. The court held
that the employer’s decision is unfair as most of the employees who were to be made redundant
were women and accounts to sex discrimination.
In the case of Construction, Forestry, Mining and Energy Union v Mount Thorley
Operations Pty Ltd (1997) 76 IR 364 it had been ruled by the court that the application of the
“last on-first off” policy is not always discriminatory and can also be applied if it is fair
according to the employer.

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The Employer's Policy manual/workbook is provided to the employees and has contractual effect
in relation to the terms contained in it.
Application
In the given situation it has been provided that Bob and Ken are the drivers of Ore Ltd. Bob was
better qualified than Ken but was working as an assistant of Ken for the last 18 months. Ken is
working for 20 year in the company and has been surprised to find out that he has been placed on
the redundancy list. He expected that the company would follow the policy of “last in first off”
which was generally used in the industry. However as per the facts of the case the company put
him on redundancy instead of Bob who had only been working for 18 months. According o te
principles provided by the case of baker and Con-stan it can be evidently argued that the “last in
first off” is not an implied term of the contract. This is because it is not an obvious or necessary
term in relation to the existence of a contract. it may be argued that the incorporation of such
terms may be done through customs in a contract but the policy is not very frequently used or
popular in order to be an implied term. In addition the employers are allowed to choose any
method to make an employee redundant unless such selection is unfair or discriminatory. As per
the provisions provided by the case of Morgan the company not using the “last in first off”
policy would not lead to a unfair redundancy. In addition there is no discrimination or unfairness
which he employer has indulged into and such method of redundancy would be regarded fair
under the FW Act.
Conclusion
Thus it can be ruled that the “last in first off” is not an implied term of the contract and the
company has not made any breach of legal provisions by not using the “last in first off” policy.

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References
Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd [1986] HCA 14; (1986) 160
CLR 226
Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165
Barker v Commonwealth Bank of Australia [2014] HCA 32.
Construction, Forestry, Mining and Energy Union v Mount Thorley Operations Pty Ltd (1997)
76 IR 364
Fair Work Act 2009 (FW Act
Morgan v Mineral Technologies Pty Ltd (2015) FWC 4142
UES (Int'l) Pty Limited v Leevan Harney [2012] FWAFB 5241