Dismissal a genuine redundancy despite no consultation

In what I regard as an interesting decision, a Fair Work Commissioner has held when determining that an employer was not obliged to consult with an employee about a possible redundancy because the modern award (the Storage Services and Wholesale Award 2010) literally only required the employer to do so if multiple employees might be affected, and thus that the employer could meet the requirements of the dismissal being a genuine redundancy despite there having been no consultation with the employee who was dismissed.

“Failure to consult under the Award

[14] A dismissal will not be a genuine redundancy for the purposes of the Act unless ATW

complied with relevant consultation obligations under the Award.1 However, in this case I do

not consider that the Award required ATW to consult with Mr Coorey in relation to his

dismissal.

[15] Clause 30 of the Award applies if an employer makes a definite decision to make major

changes in production, program, organisation, structure or technology that are likely to have

significant effects on employees. In the context of ATW’s business, the decision to no longer

[2023] FWC 927

5

employ Mr Coorey was not a decision to make a major change that was likely to have significant

effects on “employees”. It only affected one employee, being Mr Coorey.

Reasonable redeployment

[16] A dismissal is not a case of genuine redundancy if it would have been reasonable in all

the circumstances for the person to be redeployed within the employer’s enterprise or that of

one of its associated entities. Mr Coorey submits that he could have been redeployed to the

vacant warehouse worker position advertised a few weeks after he was dismissed. I agree with

this submission.

[17] Despite the contents of the ‘template’ letter sent by ATW to Mr Coorey, including that

it had “tried to find other suitable positions within the company” and that there was “no longer

any positions available”, there was an available warehouse position, and Mr Coorey had been

performing work of that kind since June 2022, although not on a full-time basis.

[18] It would have been reasonable to redeploy Mr Coorey within ATW to the position of

warehouse worker. It follows that the dismissal was not a case of genuine redundancy.

Was the dismissal consistent with the Small Business Fair Dismissal Code?”

 

Coorey v Australian Tile Wholesale Pty Ltd  [2023] FWC 927 delieverd 24 April 2023 per McKinnon C