Redundancy consultation fair work rules

In this passage from a recent unfair dismissal application dealt with by the Fair Work Commission, the Commission explains that although one of the statutory jurisdictional elements of a genuine redundancy is that the employer must have complied with the consultation obligations of any applicable modern award or enterprise agreement, the consultation methodology is a matter for the employer, not the Commission.

“These sections are set out below.

“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.

Consideration”

“389 Meaning of genuine redundancy

(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(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.

(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer.”

[112] Considering what section 389 of the Act prescribes, I firstly am satisfied that the evidence demonstrates that the Respondent no longer required Mr Ritchie’s job to be performed by anyone because of changes in the operational requirements of the enterprise.

[113] There is no challenge to the background to this matter that Chevron, the Respondent’s client, as a result of changed circumstances underwent significant cost cutting and the Respondent itself then undertook a review and as a result of the changed operational requirements decided that some jobs were no longer required.

[114] The Respondent decided that four positions were no longer required. Two of those were ESO roles. The Respondent’s selection process determined that one of the ESO roles no longer required was that occupied by Mr Ritchie.

[115] Consequently, Mr Ritchie was notified that the Respondent no longer required his job to be performed by anyone because of changes in the Respondent’s operational requirements.

[116] Secondly, I am satisfied that the Respondent complied with its obligations in the Agreement, including the model consultation term to consult about the redundancy.

[117] There is no factual dispute as to the process undertaken in terms of consulting with employees generally and Mr Ritchie in particular.

[118] There are many ways an employer can go about consultation that would satisfy its obligations to do so. The fact that others may believe different steps or actions could or should have been taken to consult is not to say the employer has not complied with its obligations.

[119] It is not open for the Applicant to contest being selected to be made redundant by attempting to impugn the Respondent’s selection process.

[120] A Full Bench of Fair Work Australia, 19 decided that the process for selecting individual employees for redundancy is not relevant to whether a dismissal was a case of genuine redundancy as follows:

“[27] The terms of s.389 of the FW Act suggest the process for selecting individual employees for redundancy is not relevant to whether a dismissal was a case of genuine redundancy. The relevant Explanatory Memorandum confirms as much. Setting aside jurisdictional pre-requisites and the matters in s.396(a) to (c), FWA only needs to consider s.387(a) concerning whether there was a valid reason for a person’s dismissal related to the person’s capacity or conduct if one or more of the criteria in s.389 of the FW Act, which sets out the meaning of genuine redundancy, have not been met. The criteria in s.389 which have not been met can be taken into account in FWA’s consideration as to whether the dismissal was harsh, unjust or unreasonable as part of s.387(h), being “any other matters that FWA considers relevant”.

[28] We think it unlikely that it was intended that FWA’s consideration of whether there was a valid reason for the dismissal related to the person’s capacity or conduct would extend to the process for selecting the person for redundancy when:

(i) the process for selecting a person for redundancy is not relevant to FWA’s determination of an unfair dismissal remedy application if the s.389 criteria for a case of genuine redundancy are met, and

(ii) any unmet criteria in s.389 of the FW Act can be taken into account as part of s.387(h) in FWA’s consideration as to whether the dismissal was harsh, unjust or unreasonable.

[29] To conclude otherwise would mean that where an employer met the s.389 criteria for a genuine redundancy the process for selecting the person for redundancy would not be a matter FWA would consider in respect of an unfair dismissal remedy application. However (unless the application was otherwise determined) an employer who did not meet the s.389 criteria because, for example, they failed to consult as required by s.389(b) of the FW Act would have both the failure to consult and the process for selecting the person for redundancy considered in any unfair dismissal remedy application.” (References omitted)

[121] I am bound by this Full Bench authority and consequently any complaints about the selection process are not relevant to determining the jurisdictional objection in this matter that the dismissal was a case of genuine redundancy.

[122] Finally, I will turn to consider whether it was reasonable, in all of the circumstances, for the Applicant to be redeployed within the Respondent’s enterprise or an associated entity of the Respondent.

[123] The possibility of redeployment for an employee whose role has been made redundant requires there be a job available which is suitable, in the sense that the employee has the skills and competence required to perform it immediately or with a reasonable period of retraining.

[124] I find on the evidence the only job available at the relevant time where redeployment of the Applicant could be considered was the position at Alcoa in Pinjarra. This was a casual position where the incumbent would be rostered to work on an ad hoc basis for an uncertain and variable number of shifts in any week.

[125] The client, Alcoa, had specified a set of particular minimum qualifications that were required for the position.

[126] The Applicant had some but not all of those qualifications.

[127] The Respondent’s view was that the Applicant did not have the following necessary qualifications.

  • Certificate IV in Health (ambulance) or equivalent
  • Certificate IV in Health (ambulance) refresher within last 12 months
  • A minimum of two years emergency ambulance experience

[128] The evidence is that the Applicant does not hold a Certificate IV in Health (ambulance).

[129] It was argued, for the Applicant, that he would have been able to demonstrate, if he was given the opportunity, that he held an equivalent qualification by virtue of recognition of his prior learning.

[130] Recognition of prior learning involves assessment by a registered training organisation assessor of information provided by someone about their existing skills, work experience and qualifications to determine whether any credit, partial or full, towards a particular qualification will be awarded for that prior learning.

[131] The Applicant’s opinion was that his prior learning would have been recognised as the equivalent of this Certificate IV in Health (ambulance) qualification. Nothing other than his opinion has been provided to the Commission as evidence regarding this issue.

[132] Relevantly, the evidence is that during this period, because of COVID-19, registered training organisations being the organisations that undertake assessments for recognition of prior learning were closed.

[133] Whilst the evidence is that the usual completion time for a Certificate IV in Health (ambulance) is 12 months, the Applicant gave evidence that even if the lack of this qualification was a problem he could have quickly and easily been trained up to this level.

[134] Even assuming credit towards the Certificate IV would be granted in recognition of his prior learning, the facts remain that the registered training organisations to undertake that assessment of his prior learning and to which he would then need to attend for refresher training were closed.

[135] Considering these circumstances my conclusion is that it would have been many months, at best, before the Applicant would have been able to possibly demonstrate that he held the equivalent of a Certificate IV in Health (ambulance) and so met this element of the minimum qualifications for the Alcoa role. Even if this had occurred the evidence is he was not able to complete the required 80 hours of clinical experience in any event.

[136] In addition, the second qualification requirement the Applicant could not immediately satisfy was that he had not completed the Certificate IV in Health (ambulance) refresher within the last 12 months. If he had been assessed as holding the equivalent of this Certificate IV in Health (ambulance) by virtue of being given a partial or even a full credit for his prior learning it would still have been necessary for him to undertake further training to satisfy this refresher requirement. Again, given the registered training organisations were closed during this period this would not have been able to be satisfied within a reasonable period.

[137] Finally, and noting that each of these qualifications must individually be satisfied for an employee to have met Alcoa’s qualifications, there is no evidence that the Applicant had a minimum of two years emergency ambulance experience.

[138] I accept the evidence that each of these qualifications for this role were mandatory and would not be waived by Alcoa.

[139] My conclusion is the Applicant did not have the competence, in terms of the required formal qualifications, for the Alcoa role and he could not within a reasonable period of retraining achieve these.

[140] It was not therefore reasonable in all of the circumstances to redeploy the Applicant to the Alcoa position nor to any other position within the Respondent’s enterprise, enterprises, or an associated entity.

Conclusion

[141] As explained above I am satisfied that the Respondent no longer required Mr Ritchie’s job to be performed by anyone because of changes in its operational requirements.

[142] I am also satisfied that the Respondent complied with its obligations under the Agreement that applied to Mr Ritchie to consult about the redundancy.

[143] I am also satisfied that it would not have been reasonable in all the circumstances for Mr Ritchie to be redeployed within the Respondent’s enterprise or within an associated entity.

[144] My decision consequently is that Mr Ritchie’s dismissal was a case of genuine redundancy within the meaning of section 389 of the Act.

[145] Because Mr Ritchie’s dismissal was a case of genuine redundancy by virtue of section 385 of the Act, he has not been unfairly dismissed.”

Ritchie v Parabellum International Pty Ltd (2021) FWC 83 delivered 19 January 2021 per Williams C