There are circumstances in which the termination of the employment of an employee on the basis of the redundancy of the position may be rare, for example because of a failure to consult, but they will be rare.
“[30] Neither party made submissions in relation to section 387(h) of the Act. However, Ms Gallina provided evidence confirming that, at the time of her termination, she had been experiencing personal hardship in her private life. The Respondent was aware of the circumstances the Applicant was experiencing. It does not appear that Sunset targeted Ms Gallina for dismissal due to these circumstances. I do consider the personal circumstances faced by Ms Gallina at the time of her dismissal to be relevant consideration in relation to the termination of her employment.
[31] Referring back to the Decision in UES, it is noted that any unmet criteria in section 389 of the Act, regarding genuine redundancy, may be accounted for under section 387(h) of the Act when considering any other matters deemed relevant to the determination of an unfair dismissal.5 Accordingly, I have considered the deficient consultation process noted earlier in this decision.
[32] It is also useful to note the Decision in Maswan v Escada Textilvertrieb T/A ESCADA (Escada),6 which bears some similarity to the matter presently before the Commission. In Escada, when considering other relevant matters under section 387(h) of the Act, Vice President Watson addressed a failure to consult regarding redundancy. In doing so, the Vice President outlined:
“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 aserious 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 had occurred.
…
For the reasons above I find that Mr Maslan’s dismissal does not fall within the definition of a genuine redundancy in the Act because of the failure of Escada to comply with its obligations to consult over proposed terminations arising from changes at the workplace.
I also find that the termination of his employment is not harsh, unjust or unreasonable as the decision was the result of a soundly based business decision to restructure the operations and merge two positions. The failure to consult did not lead to a different conclusion to that which would have, in all likelihood, been reached had consultation occurred. Therefore this failure does not render the dismissal unfair. The application is dismissed.”7
[33] Having considered the material before me, and the circumstances of this matter, I am not satisfied that the deficiencies outlined, although not ideal, had any notable influence on the inevitable outcome of the matter. Had a more careful consultation been undertaken it would have been highly unlikely to negate the reasons for and outcome of the dismissal.
[34] The circumstances that resulted in the dismissal of Ms Gallina are unfortunate. Ms Gallina was a casual employee whose hours were at the mercy of the overall operational requirements of the Respondent’s business. And, unfortunately, the Respondent suffered a significant operational downturn which resulted in a genuine commercial need to reduce staff and hours. On the evidence before the Commission, Ms Gallina was not unfairly targeted by the Respondent during this process. Had a flawless process been executed in the lead up to the dismissal of Ms Gallina, there would have been no substantive change to the unfortunate outcome of the circumstances.
Conclusion
[35] Having considered the matters in section 387 of the Act, I have determined that the dismissal of Ms Gallina was not harsh, unjust, or unreasonable. It was therefore not unfair.
[36] Accordingly, the application is dismissed, an Order to that effect is issued.”8
Gallina v Sunset Coast International English School Pty Ltd Trading AS Lexis English [2025] FWC 1831 delivered 26 June 2025 per Sc