Breaking up hard to do for Toll

Date: 30.11.2009

Toll's decision to restructure sparks backlash, as one manager calls it a bad idea and former employee launches legal action

By Brad Gardner | November 30, 2009

Toll’s decision to restructure one of its divisions has sparked a backlash from employees, with one calling it a bad idea and another launching legal action.

In a case held before the Australian Industrial Relations Commission, Toll was forced to defend its decision in May this year to separate its contact centre that serviced NQX and QRX Refrigerated into two entities dedicated to each company.

Although the matter was over an unfair dismissal claim made by Nicole Stuart, documents show one of Toll’s national service managers, Allan Ford, wanted the changes scrapped because they would lead to a decline in services.

"I did not agree with the decision to separate the contact centre as I believed it would lower the standard of customer service of both businesses," Ford told the AIRC.

The managers of NQX and QRX rejected the concerns and decided the changes would go ahead.

After informing staff of the restructure Toll subsequently fired one of its two supervisors, Stuart.

She claimed the company had no right to sack her because it did so after discovering she was pregnant.

The commission heard that Stuart told her manager about her pregnancy at the beginning of May, and on May 11 Ford wrote to his manager, Mark Eisentrager, saying Stuart was no longer needed.

But Commissioner Paula Spencer found Toll acted legitimately because the restructure meant one of the company’s two supervisor roles was not necessary.

"There is no evidence to suggest that the separation of the contact centre and the consequential termination of the applicant’s employment was a sham or that there was some other reason for terminating the applicant’s employment," Spencer says.

Ford had conducted a skills assessment of the two supervisors and concluded Stuart's colleague, Catrina Dale, had a higher skill level than Stuart due to her more than four years working for the company.

"The other supervisor, Nicole Stuart, has been with us less than a year. She is the higher paid of the two supervisors by an amount of $7,000 per annum," Ford wrote in his email to Eisentrager.

Citing previous cases, Spencer ruled employees are prohibited from launching unfair dismissal claims if a decision is made for genuine operational reasons.

"The respondent has demonstrated that one of the reasons for the termination of the applicant’s position included the business’ genuine operational requirements," Spencer says of Toll.

"The respondent submitted the decision to make Ms Stuart redundant was not in any way based on her pregnancy and was based solely on the above considerations and the operational needs of the respective business units."