When dismissing an employee for redundancy, the fact that an employer may not be able to demonstrate that it has complied with the procedural (eg consultation) and substantive (eg the job has really been properly abolished) requirements to constitute the complete jurisdictional defence that is a “genuine redundancy” does not mean that in an unfair dismissal case arising from the dismissal , the dismissal will inevitably be held to be relevantly unfair.
For example, in Maswan v Escada Textilvertrieb (2011) FWA 4239 Watson VP held that “In my view a decision to dismiss on account of redundancy will only be harsh, unjust or unreasonable if the rationale for the decision is seriously undermined or if there is a serious error in procedure such that renders the termination unfair in the circumstances. Here the decision appears open to the employer to make. The failure to consult is not a trivial matter. But as it is clear that consultation was highly unlikely to have negated the operational reasons for the dismissal or lead to any other substantive change, I do not believe that the failure to consult prior to the date of termination rendered the dismissal unfair. Given the evidence in relation to the operational need to restructure, I am of the view that it is likely that Mr Maswan would have been dismissed in any event, even if timely consultation occurred”.
In Supara v Slumbercare Pty Limited T/A Stuarts House of Bedding (2013) FWC 8704 per Williams C the applicant first heard of his termination when he was called into a meeting and given a letter by the factory manager explaining that his employment had been terminated due to redundancy. However while this omission to consult prevented the claim from being dealt with on the grounds it was a “genuine redundancy”, the Fair Work Commission decided that the employer’s failure to consult did not cause the dismissal to be harsh, unjust or unreasonable, as consultation would not have changed the outcome.
In Thomas v GH Quality Bricklaying Pty Limited (2016) FWC 2852 per Platt C the consultation provisions in the applicable Building and Construction General On-site Award 2010 were not correctly observed as there was a failure to provide written notification in relation to proposed impending changes to the business and the expected effects of those changes on employees and any other matters likely to affect the employees. This case highlights one of the standard consultation provisions in Awards which is the obligation to provide written advice in relation to certain matters. In any event, the Fair Work Commission decided that the failure to provide a written document detailing various information and options would not have changed the outcome. Therefore the Commissioner concluded that while the termination was not a “genuine redundancy” within the meaning of the Act, the termination was not harsh, unjust or unreasonable.