FWC rules that dismissal of “strongly progressive” church worker was unfair6 September 2019 | Employer's Liability
A church worker was unfairly dismissed when she failed to secure a new role in a restructure.
- Was the employee’s dismissal a case of genuine redundancy?
- Was the employee’s dismissal unfair?
The applicant (Ms Bleyerveen) commenced working for the respondent (Uniting Mission and Education) as a consultant in mid 2014.
The applicant was dismissed in November 2018 when her team was disbanded following a restructure. Rather than take redundancy, the applicant applied for a new role at the respondent but was unsuccessful.
Selection criteria for the new role favoured candidates who could work “respectfully” with communities opposed to same-sex marriages, however, the respondent was concerned that the applicant was “strongly progressive” and not very flexible (which, in their view, made her an unsuitable candidate for the position).
During the interview process the applicant was not made aware of the respondent’s concerns nor advised of the selection criteria for the new position.
The Decision at Trial
The Commission ultimately found that the applicant’s dismissal was not a case of genuine redundancy. It was instead an unreasonable dismissal based upon incomplete information, in circumstances where the applicant was not provided a fair opportunity to display her capability to undertake the new role.
While the applicant was “well advised” to seek some professional development in certain areas, the Commission considered that she was skilled and competent to perform the key responsibilities of the new role. The Commission was also of the view that the dismissal was harsh given her age and the specialist nature of the work she was engaged in.
The Commission invited both parties to make submissions on an appropriate remedy, given that the applicant may have found other employment since her dismissal or the respondent might now have a vacancy for another role.
Implications for you
This decision suggests that while employers may reserve the right to assess and hire workers against specified selection criteria, specific requirements for a role ought be made known to candidates so that they have the opportunity to demonstrate their suitability.