It is not the function of the Fair Work Commission in an unfair dismissal case to pass judgement on the operation or commercial wisdom of an employer’s operational decisions including to make changes to operations which produce redundancies.
“[9] It equally follows that modifications to a business that might be said to be required or necessary, because of changes to operational requirements, are extremely varied and broad. In other words, the nature and extent of any modifications to a business flowing from changes in its operational requirements are essentially matters of managerial discretion. Such discretion might be exercised to make changes that are, in the opinion of the relevant decision-maker, required or necessary. The fact that others, for example, an employee, customer, shareholder, or stakeholder affected by a decision, or an unaffected member of the public, might consider a particular decision to be bad, or wrong, or consider that another alternative and better (or more appropriate) decision ought to have been made, is not to the point. Persons in managerial roles (in the for-profit, or not-for-profit, sectors) are tasked with the responsibility to make decisions in respect of how a business is run to achieve stability and/or growth over the short, medium and/or longer terms. It is certainly not the role of the Commission to stymie or interfere with operational decisions made on a bona fide basis within the extremely broad bounds of managerial discretion. As was stated by Vice President Hatcher in Low v Menzies Group of Companies :
“It is not the function of the Commission, in determining whether a dismissal is a case of genuine redundancy, to form a view about the merits of the decision to make a position redundant. Whether it was objectively fair or justifiable to decide to abolish a position is beside the point, as long as the employer acted as it did because of changes in its operational requirements.”
Shilson-Josling v Atomic Search Pty Ltd [2024] FWC 3255 delivered 25 November 2024 per Boyce DP