Redundancy; consultation and redeployment issues

“Today I am publishing an extract from a Fair Work Commission unfair dismissal case which deals with the legal requirements of consultation in a genuine redundancy defence together with the redeployment implications of the Fair Work Act..

“Consultation obligations (s.389(1)(b))

[28] Both parties agree that the Applicant’s role is covered by the Banking, Finance and Insurance Award 2020.

[29] Whilst the finalisation of the decision to dismiss the Applicant commenced as a discussion on stand down, the Applicant accepts that the issue of his future employment was discussed the week prior to his dismissal. As he said, he engaged in “every conversation” about saving his job with no satisfactory outcome.

[30] Whilst the discussions over the week prior to the dismissal of the Applicant were not called “consultation” as might often be expected in such a circumstance, I am satisfied that the content of the discussions with the Applicant was in relation to the decision to reduce staff at the Respondent and his future with the business.

[31] It is well established that the method of selection of the person to be made redundant is not a matter for the Commission to consider in determining if the redundancy was genuine. The Explanatory Memorandum to the Fair Work Bill clearly states that “Whether a dismissal is a genuine redundancy does not go to the process for selecting individual employees for redundancy.” 2 To the extent the conversation with the Applicant went to this matter or that it is put as a relevant consideration to me, it is not matter I should take into account.

[32] I am satisfied that there was appropriate discussion with the Applicant prior to the finalisation of the decision to dismiss him.

[33] I am therefore satisfied that the requirements of s.389(1)(b) have been met.

Was redeployment reasonable?

[34] The position the Applicant says he could have been redeployed into was not advertised until some 9 weeks after he was dismissed. In any event, the Respondent determined not to fill the position.

[35] Whilst it may have been reasonable for the Applicant to be redeployed into a nominated position, that the position of Credit Analyst was not advertised as vacant at the time of his dismissal means that it was not available for him to be redeployed into at that time. That it has not been filled supports a conclusion that it was not available for redeployment even if that could have occurred weeks after the redundancy.

[36] Mr McKay said that, in any event, even if the position was available the Applicant did not have the skills necessary to do the job. For the reasons given I do not need to determine this question.

[37] The Applicant identified no other positions he could have been redeployed into. I am therefore satisfied that it was not reasonable in all of the circumstances to redeploy the Applicant within the Respondent’s business.

Conclusion

[38] For all of these reasons I am satisfied that the dismissal of the Applicant was a genuine redundancy.

[39] Section 385 of the FW Act details when a person has been unfairly dismissed. It states that:

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

[40] In circumstances where the dismissal was a genuine redundancy Mr Hardy cannot have been unfairly dismissed. His application must therefore be dismissed. An order 3 to this effect will be issued at the same time as this decision.”

Hardy v SME Commercial Finance Pty Ltd (2020) FWC 4060 delivered 4 August 2020 per Bissett C