Employers beware; “tokenistic” consultation in redundancies

For a redundancy to be valid, in the sense that it is a defence by an employer to an unfair dismissal claim, the requirements of sec 389 of the Fair Work Act 2009 must be satisfied. The section requires, inter alia, that the employer must comply with any obligation in a modern award or enterprise agreement “to consult about the redundancy”. Most Australian employees are covered by one of those instruments.

In Williams and Others v Staple Australia Pty Ltd [2017] FWC 607, Commissioner Cambridge of the Fair Work Commission, in an unfair dismissal case, found that:

“Regrettably, in this instance the evidence has disclosed an approach to consultation in respect to the redundancies of warehouse jobs that was unduly hasty and largely tokenistic. Staples management did not engage in genuine or meaningful consultation with its employees and their representatives, but instead it made disingenuous gestures which it sought to portray as consultation.”

Commissioner Cambridge also found that the process adopted by the employer “whereby it advised employees on 11 July of the decision to make between 10 and 14 warehouse employees redundant, and the selection of the particular 12 individuals made by the following evening, could not, on any reasonable and objective contemplation, provide for the discussion and provision of relevant information as contemplated by clauses 5(a) and 5(b) of Annexure 3 of the Agreement”

Accordingly the Commissioner concluded that there was “no proper opportunity for discussion about measures that might avert or mitigate the adverse effects of the decision to implement redundancies in the warehouse. As an example, the prospect that a number of existing full-time employees may have contemplated altering their work arrangements to part-time, and perhaps job share as a means to avoid job losses, did not emerge as a discussion topic. There was simply insufficient time for discussion about a topic such as job share.”