Unfair Dismissal: Irnya Margolina v Jenny Craig Weight Loss Centres Pty Ltd FWA 5215
Fair Work Australia has found that an employee previously employed as a manager for a Jenny Craig Weight Loss Centre was not genuinely redundant because the company failed to consult her about the redundancy or offer her another position.
Although the company felt that she would be “insulted” if offered a lower paid role, Commissioner Ryan said that “such a request could have been put to her in a consultative environment without any appearance or suggestion that any insult was intended”.
The manager gave evidence to the hearing that she would have accepted a lower paid position and had asked the company if there was one available as fewer working hours would have given her more time with her 18 month old daughter. She subsequently accepted a role which was lower paid and involved fewer hours.
Commissioner Ryan rejected the company’s argument that the title and salary paid to the manager meant that she was not covered by the Clerks’ Award or any other relevant award or agreement that made consultation mandatory. He said that even if the employer has no modern award or enterprise agreement obligation to consult an employee about a redundancy, the employer should consult with an in relation to possible roles to which the employee could be redeployed. He therefore found that he had jurisdiction to hear the manager’s unfair dismissal case as a result of a non-genuine redundancy.
Irnya Margolina v Jenny Craig Weight Loss Centres Pty Ltd FWA 5215