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Three Dismissal by Demotion Cases in One Week

[2018] FWC 6695 Newcastle Harrison v FLSmidth P/L (the A was demoted “from the position of Service Supervisor to that of Mechanical Service Technician – Experienced (Service Technician). He remains employed by FLS in the position of Service Technician” @ – “The proper characterisation of events is one in which FLS made a number of allegations against Mr Harrison and asked him to show cause as to why his employment should not be terminated, Mr Harrison responded by floating a number of ideas (including demotion) in an effort to remain in employment with FLS, and FLS then decided to demote Mr Harrison and issue him with a written warning. It is therefore apparent that the action of FLS was the principal contributing factor which led to Mr Harrison’s demotion. The demotion was at FLS’s initiative, not Mr Harrison’s … There is no doubt that the demotion involved a significant reduction in Mr Harrison’s remuneration and duties. Accordingly, Mr Harrison’s demotion in his employment with FLS constitutes a dismissal within the meaning of s 386” @70-71)

[2018] FWC 6666 SA Whitfield v Master Tree Ninja (the unilateral withdrawal of leading hand responsibilities from A was a repudiation of his contract of employment – A had agreed by contract to work as a ground crew climber – “When Mr Whitfield was promoted to leading hand in March 2018 it was an offer made verbally and an offer accepted verbally” @82 – this was a lawful variation of contract – “unilaterally removing a contractual right to be employed as a leading hand was the removal of a fundamental right under his contract of employment” @86 – this was a dismissal on the employer’s initiative)

[2018] FWC 6446 NSW De La Torre v Coastwide Engineering P/L (“the actions of the Respondent by reducing the Applicant’s salary by 20%, by withdrawing the Applicant’s use of a company car and company mobile phone and the reduced status of the Applicant’s role by moving the Applicant from a staff position to a tradesman was a significant reduction in the terms and conditions of the Application’s employment resulting in the Applicant being demoted” @41 – a reasonable person in such circumstances would see their employment as having ended – “It is extraordinary that the Respondent submits that the Applicant is still ‘on the books’. The Applicant has not reported for work or been paid since the last week in April. It is also relevant that the Respondent has not attempted to contact the Applicant post 26 April 2018 to enquire in relation to his availability or his intended return to work. There has certainly been no enquiry from the Respondent in relation to the prospect of the Applicant abandoning his employment” @42 – no legal capacity existed under the relevant award to demote A – R has repudiated the contract – dismissal found harsh and unjust)