Redundancy consultation must be meaningful

For a redundancy to be a “genuine redundancy” and thus a jurisdictional defence to an unfair dismissal case, an employer must be able to show that it complied with a several statutory requirements, including that it complied with the consultation provisions of any applicable modern award or enterprise agreement.

The following Fair Work Commission case indicates that the required consultation must be meaningful and not just tokenism.

“In Maswan v Escada Textilvertrieb T/A ESCADA 5 Vice President Watson found of a consultation provision in the same terms:

[19] These provisions are of long standing, emanating from the Termination, Change and Redundancy test case 6 in the early 1980s and from time to time have been reflected in legislation. The requirement to discuss proposed changes and consult about the changes has been held to require meaningful consultation and not merely an afterthought. Consultation after an irrevocable decision has been made has been held to not amount to meaningful consultation7.

[20] As Sachs LJ observed in Sinfield v London Transport Executive [1970] [at 558]:

“Consultations can be of very real value in enabling points of view to be put forward which can be met by modifications of a scheme and sometimes even by its withdrawal. I start accordingly from the viewpoint that any right to be consulted is something that is indeed valuable and should be implemented by giving those who have the right an opportunity to be heard at the formative stage of proposals – before the mind of the executive becomes unduly fixed.” 8

In the matter before me I am satisfied that there was no consultation with the Applicant. She was advised of the decision to make her position redundant and engage an agent and when she enquired as to whether she could take on the role of agent was told that it would not be fair to her. This does not amount to consultation but, in any event, it was a one way process. The decision had been made; the Applicant would be made redundant; no discussion was to be had. As Mr Clegg said in his evidence, the phone conversation of 15 June 2017 with the Applicant was to relay the decision to her; it was not to have a discussion with her about the decision. I would also observe that the Respondent did not provide anything to the Applicant in writing as is required under clause 9.1(b)(iii) of the SSW Award and, in this respect, failed to meet the consultation requirements.”

Marafioti v Gonzalez Pty Ltd T/A Mac’s Crafts (2017) FWC 5484 delivered 26 October 2017 per Bissett C