Lack of consultation may convert dismissal to unfair

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


[115] I have made findings in relation to each matter specified in section 387 of the Act as


[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


[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


[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


[2023] FWC 2628


[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


[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.


[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