There will be circumstances in which a failure to comply with the mandatory consultation provisions of an industrial instrument will convert a reasonable decision to terminate the employment of an employee into an unfair dismissal, as is demonstrated by the following extract from an unfair dismissal case, thus
“Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or
unreasonable?
[115] I have made findings in relation to each matter specified in section 387 of the Act as
relevant.
[116] I must consider and give due weight to each as a fundamental element in determining
whether the termination was harsh, unjust, or unreasonable.30
[117] I have determined that the Respondent’s failure to comply with the Award meant that
the decision to terminate the Applicant’s employment was completed in a manner which was
unjust.
[118] The Award required the Respondent to consult with employees if there is major change
in the operational environment which is going to impact on the employee’s employment.
[119] The Respondent failed to adhere to the requirements of the Award and consult with the
Applicant in relation to the change in operational location which resulted in the Applicant being
dismissed.
[120] The failings of the Respondent to properly follow the requirements of the Award, does
not change that there was a legitimate reason to end the employment relationship between the
Applicant and the Respondent.
[121] It is clear that the Respondent’s changing operational requirements and decision to
relocate operations constituted a major change for which the Applicant should have been
consulted on prior to the decision being made.
[122] I have considered the submissions and evidence of the Respondent and it is evident that
the operation in Kununurra was no longer financially viable for the Respondent and, as a result
of this decision, the Applicant’s position in Kununurra was no longer required.
[123] The Respondent’s decision to relocate the operation from Kununurra to Darwin is
logical and made sense in the circumstances. I accept that this was a sensible reason for
termination. However, this does not excuse the failure to consult or attempt to redeploy the
Applicant.
[2023] FWC 2628
17
[124] The Respondent had an obligation to the Applicant to ensure it complied with the
requirements of relevant industrial instruments prior to making any decision in relation to the
Applicant’s employment ending. For the reasons I have outlined above, the Respondent failed
to provide the Applicant with a fair go all round and did not provide him with a procedurally
fair process. As a result of this failure by the Respondent, I have found that the termination was
unjust.
[125] The Respondent failed to consult with the Applicant prior to making the decision to
relocate the operation from Kununurra to Darwin. I accept that, had the Respondent complied
with this obligation under the relevant Award, then the Applicant would have had the ability to
explore the possibility of relocating from Kununurra to Darwin. Likewise, the Respondent
should have provided the Applicant with the opportunity to respond to his termination prior to
making the final decision to terminate the Applicant’s employment.
Conclusion
[126] I am therefore satisfied that the Applicant was unfairly dismissed within the meaning of
section 385 of the Act.
[127] Directions for a hearing on remedy will be issued in due course.”
Bradley v United Petroleum Transport Pty Ltd [2023] FWC 2628 delivered 12 October 2023 per Schneider C