IN a test case for federal dismissal rules, a Priceline worker is appealing a decision that allowed the retailer to sack him and re-advertise his job on lower pay.
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Andrew Cruickshank, 42, of Benalla, is challenging a finding by the Australian Industrial Relations Commission in April that his sacking was legal because “at least part” of the decision was based on the company’s financial position.
Priceline used “operational reasons” under WorkChoices to sack 32 workers last November after it lost $17 million as part of a transition to new management.
Mr Cruickshank, a “space planner’’ who decides where products are placed in stores, was earning a salary package of $101,000 — made up of $75,000 salary, superannuation payments and a car.
He subsequently found his job advertised on a salary package of up to $75,000.
Mr Cruickshank’s lawyer, Maurice Blackburn Cashman principal Josh Bornstein, said the appeal would test whether bosses could sack workers for “operational reasons’’ and then hire someone else on the same or lower wages.
If it failed, it would mean employers could sack anyone with impunity.
“On that view, you could easily decide to sack someone because you don’t like them, but then contrive a convincing business case and avoid any liability under unfair dismissal laws,’’ Mr Bornstein said.
Before WorkChoices, the test for unfair dismissal was much tighter.
The commission had to decide if there was a “valid reason” for the redundancy.
Now, “operational reasons” just has to be one of the justifications.
A full bench of the commission will hear the appeal on Monday.
Priceline spokesman Rob Tassie denied the same job had been advertised, saying the pos-
ition had a lower level of responsibility.
He also said the job had not been filled.
“We don’t believe we’ve actually made someone redundant to employ someone else on a lesser salary,” he said.
“WorkChoices didn’t have any bearing on our decision. It’s a decision we made to restructure.
“And presented with the same issues, we would do the same thing.”
Mr Cruickshank now earns $55,000 as a travelling sales representative, which takes him away from his family one week in every six.
His sacking late last year meant Christmas was “shot to pieces”, while his new job leaves his son in tears when he goes away for the week.
Mr Cruickshank feels he is a victim of WorkChoices and is fighting to seek justice for himself and to clarify the laws for others in similar situations.
“As it stands at the moment, I’m fearful at the way things will move forward, knowing that anyone can be terminated to save costs,” he said.
A spokeswoman for Workplace Minister Joe Hockey said it was illegal for an employer to sack someone because they no longer wanted to pay their wages under their agreement.
“If an employer claims there are ‘operational reasons’ for the dismissal, the Industrial Relations Commission must be satisfied that the operational reason is genuine and not a sham,” she said. “A mere assertion by an employer is not sufficient — evidence and proof is required.”
— THE AGE
