Redundancy and consultation

One of the requirements upon an employer to qualify a termination of employment as a genuine redundancy (which of course is a statutory jurisdictional defence to an unfair dismissal claim) is that the employer complied with the consultation requirements of an applicable modern award or enterprise agreement.
The Fair Work Commission has held that the availability of that defence will not be compromised if there is no such applicable instrument, even if there is a contractual or compliance policy requirement to do so.
“s.389(1)(b) – the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy
[213] It is not disputed that Ms McNichol was not employed under an enterprise agreement or modern award. I have satisfied myself that Ms McNichol’s employment was not covered by a modern award taking into account the industry in which she worked, and the work performed by her. I am further satisfied that her employment was not covered by an enterprise agreement. Accordingly, there is no consultation obligation for the Respondent to have satisfied.
[214] Whilst it is not a relevant consideration the Commission need have, I do consider it was inappropriate for Mr Williams to have stated to Ms McNichol, when she asked on 6 May 2020 if she was being “fired” the next day to have said to her, “We are not firing you.” Mr Williams knew that the Respondent was terminating Ms McNichol’s employment for redundancy, and would be more cautious, I recommend, in future conversations with employees to convey an appropriate response.
[215] The Respondent submitted in its initial response that it had met its consultation obligations within its Termination Policy. The whole of the Termination Policy has not been provided for the Commission’s consideration; however I consider it highly unlikely that any such obligation has been met when regard to the snippet that has been provided which states:
“We will follow 4 fundamental principles regardless of why we might be thinking about terminating your employment…..”
[216] This suggests that there would likely be some discussion well prior to any decision to terminate an employee’s employment. In Ms McNichol’s case, this did not occur; she was informed of the dismissal on 7 May 2020.
[217] The consideration at s.389(1)(b) does not extend to any obligation within a common law contract or an employment policy within a workplace. Accordingly, I am not required to consider any potential breach of the Termination Policy in my consideration as to whether s.389(1)(b) is satisfied.”

Mcnichol v Shape Australia Pty Limited [2021] FWC 928 delivered 19 February 2021 per Hunt C