Redundancy and unfair dismissal

The approach of the Fair Work Commission to unfair dismissal cases in which an employer terminates the employment of an employee because the employee’s job has become redundant but where the employer fails to comply with the consultation provisions of an applicable modern award or enterprise agreement seems to me to be inconsistent. Some cases hold to the effect that a termination of employment will not be regarded by the Commission as relevantly unfair if the employer fails to comply with consultation obligations unless an applicant can show that such consultation would have changed the employer’s position.

Other decisions make the point that a failure to consult will render the dismissal unfair without more. Here is an example.

In Hurley v Tex Onsite Pty Ltd (2020) FWC 4724 delivered 3 September 2020 per Hamilton DP a deputy president of the Commission held that although the applicant employee’s position had become redundant his dismissal was relevantly unfair saying

“I have taken account of all the submissions and evidence put and my findings set out above and give them weight. I find that because of procedural fairness failings the termination of Mr Hurley was harsh, unjust or unreasonable. Parliament has legislated to require consultation before a genuine redundancy is such, and I must give Parliament’s intention weight.”