Fair Work rules against Fuji Xerox Australia in unfair dismissal claim

The Fair Work Commission has ruled that Fuji Xerox Australia unfairly dismissed one of its former service technicians after breaching terms in its employment agreement.

Fuji Xerox made Sham Kumar redundant on 15 January after the company decided to close its print workshop in Alexandria, Sydney. Kumar had been employed on a permanent basis since 1996.

In the termination letter also dated 15 January, Fuji Xerox Australia national order fulfilment and ANZ manufacturing manager Patrick Dunn said the company was unable to identify an open position within the company that was equivalent to Kumar’s skills and seniority, but said he was welcome to apply for any available roles on a merit basis.

“We advised that you will now enter a redeployment period from today until 22 January 2018,” Dunn wrote in the termination letter.

“We advised that you will have the option to be considered for other redeployment opportunities, however, if we are unable to find you a suitable redeployment opportunity, then your role would cease for reasons of redundancy as on 15 January 2018 in which you would be eligible for a redundancy package.”

Fair Work Commissioner Bernie Riordan's ruling said Fuji Xerox did not consult with Kumar or with the National Union of Workers (NUW) prior to the redundancy, hence not meeting the consultative requirements of the employment agreement.

“In accordance with clause 7.b of the [Fuji Xerox Technical Services Operator Employees Enterprise Agreement 2015- 2018], Fuji Xerox was obligated to consult with Sham Kumar in relation to his proposed redundancy. This did not occur, a fact now recognised by the Respondent,” the commissioner reported.

Riordan also noted that Kumar was not consulted about the downsizing of the workforce and that the process of making him redundant was based on a subjective skills matrix. He said the matrix was flawed in the context of comparing Kumar, and argued was a skilled technician to his colleagues.

“I find that Kumar’s termination was not a case of genuine redundancy due to Fuji Xerox’s failure to consult in accordance with the agreement.”

Kumar was awarded by the commission three weeks pay plus superannuation on top of the redundancy pay he received, which includes 86.7 weeks’ pay plus an additional 5 weeks’ notice. He was also extended an offer of a three-month outplacement program with Prima Careers.

CRN has reached out to Fuji Xerox Australia for comment.

Fuji Xerox Australia is coming off of a tumultuous 2017, including an accounting scandal and the exodus of senior staff. Its business process outsourcing division was also criticised for its role in the 2016 election for providing an ineffective semi-automated counting solution.

Globally, the 56-year-old joint venture is also in danger of ending altogether as Fujifilm and Xerox exchange threats of lawsuits following their unsuccessful $7.6 billion merger.