An employer which terminates the employment of an employee as a “genuine redundancy” will have a complete jurisdictional defence to an unfair dismissal claim. One of the elements of that defence is that the employer must demonstrate compliance with the consultation obligations of any applicable enterprise agreement or modern award.
What does “consultation” in that context require?
“Having found that the consultation requirements under the Agreement applied to the dismissal of the Applicant, I must now determine whether the Respondent complied with same.
Whilst the Respondent engaged in an extensive redeployment process, to which consultation was a central attribute, I do not accept that the Respondent complied with the consultation requirements set out under Clause 8(b) of the Agreement. In this regard, I accept the Applicant’s evidence that he was not advised during the redeployment process, and prior to his dismissal on 25 February 2021, that he would be made redundant should he fail to apply for and/or be successful in securing an alternative role. In my view, genuine consultation under Clause 8(b) of the Agreement necessitated the Applicant being told or put on notice that a likely or potential outcome of his failure to be redeployed into another role could lead to his dismissal for reasons of redundancy, and for him to be given an opportunity to consider his position in that regard, and provide feedback (including in relation to potential alternatives for the Respondent to consider prior to determining to dismiss the Applicant for reasons of redundancy).”
Davison v DHL Supply Chain (Australia) Pty Ltd (2021) FWC 4573 delivered 8 October 2021 per Boyce DP