Sec 389 of the Fair Work Act provides that a dismissal which arises as a consequence of a genuine redundancy cannot be successfully pursued as an unfair dismissal. There are a number of statutory requirements which an employer needs to satisfy to be able to demonstrate that a dismissal arises as a genuine redundancy including that the employer complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy; see sub-sec 389(2)(b).
Many modern awards contain a provision to the effect that meaningful consultation is required to be undertaken by an employer in this context after an employer an employer “makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees”. The phrase “significant effects” is relevantly defined to include “termination of employment”.
I have often seen it argued by employees that the standard consultation provision in modern awards mandates meaningful consultation even under the standard clause in the event of the redundancy of just one employee’s job. The extract which follows is a decision of the Fair Work Commission which rejects that argument.
“[31] The consultation requirements under clause 28 of the Award are conditional upon the
relevant change being a “major” one that is likely to have “significant effects on employees”.
Determination of whether a change falls within this definition appears to be one of fact and
degree. As White J said in Port Kembla Coal Terminal Ltd v CFMMEU25:
“I do not regard a simple comparison between the number of employees to be
terminated, and the number of the employees in its workforce overall … as being
necessarily conclusive of the question of whether a change is “major”. Much may
depend on the circumstances of a given case including, for example, the seniority and
importance of the employees … , the extent to which … employees work in an integrated
or disconnected manner; the consequences for the continuing employees of the
redundancies and consequent terminations, as well as other matters”.
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[32] It has been said that reference to the plural “employees” rather than “employee” in
similarly worded clauses does not capture individual redundancies on the basis that individual
redundancies do not constitute a “major change” to the Respondent’s operations that impact
upon a collective of employees.27
[33] In this case, there was only one redundancy (i.e. the Applicant’s role). I do not accept,
on the evidence before me, in the circumstances of this case, that s.389(1)(b) of the Act is
enlivened for consideration in these proceedings. In this regard, I find that, on the terms of
clause 28 of the Award, by reference to the case law set out in this decision:
(a) The redundancy of the Applicant’s role in the Respondent’s business:
- was not a “major change” (i.e. the work performed by the Applicant was
outsourced); and
- did not have “significant effects” upon the Respondent’s remaining
employees on an individual or collective basis (i.e. there is no evidence of
any effects let alone significant effects flowing to any of the Respondent’s
employees arising from the redundancy of the Applicant’s role with the
Respondent. Whilst some existing employees might pick up an additional
administrative or other task, this would not constitute any change or effect
of significance).
(b) The Respondent has satisfied its Award obligations as to consultation
concerning the Applicant’s redundancy in that no Award consultations
obligations arise for determination in these proceedings (i.e. because the
threshold criteria (major change and/or significant effects) under clause 28 of
the Award have not been satisfied on the evidence before me as matters of fact).
[2023] FWC 2128
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[34] The Applicant made extensive submissions asserting a failure by the Respondent to
consult with her (or consult with her appropriately) in respect of its decision to make her role
redundant. The Respondent engaged with these submissions, and took the position that even if
the Award did cover and apply to the Applicant at the time of her dismissal, and even if her
dismissal (redundancy) was a “major change” that had “significant effects” upon other
employees, the Respondent nonetheless and in any event complied with the consultation
requirements under clause 28 of the Award.
[35] Notwithstanding my finding that the Respondent has satisfied its Award obligations as
to consultation concerning the Applicant’s redundancy in that no Award consultations
obligations arise for determination in these proceedings, I will in any event consider whether
the Respondent has complied with clause 28. The facts in this regard are in my view properly
reflected in the Respondent’s submissions, which read:
“NGS Super made a definite decision about the proposed redundancy on 9 March 2023.
The proposed meeting to advise Ms Burneikis of the outsourcing and her redundancy
was scheduled to take place on 16 March 2023, but this was delayed initially because
Ms Burneikis was unwell and subsequently because of a cyber security incident
affecting NGS Super.
On 20 April 2023, NGS Super met with Ms Burneikis. In that meeting, Ms Melissa
Adam, Chief Experience Officer, and Mr Luke Jansson, Head of People and Culture:
- gave notice of the changes to Ms Burneikis, being that:
- a decision had been made to outsource the graphic design work;
- as a result, the Graphic Design Manager role was no longer required;
and
iii. Ms Burneikis’ employment would be terminated by reason of
redundancy if no alternative role could be found for her;
- discussed with Ms Burneikis the introduction of the changes, the expected
impact on her employment and other matters likely to affect her. This occurred
by:
- explaining the likely effect of the decision (if no suitable redeployment
was found), would mean her employment would be terminated;
- giving Ms Burneikis opportunities to ask questions about the changes
and to discuss them;
iii. encouraging Ms Burneikis to take time to consider the information and
to reconvene at a later date to discuss further, including after she had
reviewed the letter handed to her at the meeting which summarised the
matters discussed;
[2023] FWC 2128
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- providing additional paid leave to Ms Burneikis in the interim, to all
her non-work time to consider the redundancy decision and her response;
- discussions about attempts (albeit unsuccessful) to find a role to which
Ms Burneikis could be redeployed; and
- commenced these discussions with Ms Burneikis as soon as was practicable,
after a definite decision had been made(noting the slight delay in commencing
these discussions given the circumstances outside of NGS Super’s control as
noted in paragraph 25 above).
On 20 April 2023, during the consultation meeting, NGS Super provided a letter to Ms
Burneikis which set out in writing:
- the nature of the changes, including:
- the reasons for and decision to outsource the graphic design work;
- that the changes were not a reflection on Ms Burneikis’ performance;
- their likely effect on Ms Burneikis, including:
- that her employment would be terminated if she could not be redeployed
(which was unlikely);
- that she would be paid her statutory entitlements including pay in lieu
of notice, redundancy pay, accrued annual leave and long service leave;
and
- other matters likely to effect Ms Burneikis, including:
- the number for NGS Super’s confidential Employee Assistance Program
if Ms Burneikis’ needed some support;
- to thank her for her contribution; and
iii. to say she could contact Mr Jansson if she had any further questions.
NGS Super attempted to arrange a second meeting with Ms Burneikis to allow her the
opportunity to raise any additional questions or comments resulting from the
consultation meeting or the letter, regarding her redundancy. However, after some delay
due to Ms Burneikis being unwell, NGS Super received a letter from Ms Burneikis on
8 May 2023, raising several issues about the redundancy and advising that her
preference was to not meet in person for any additional meetings.
On 15 May 2023, after taking the time to consider the comments Ms Burneikis raised
regarding her redundancy on 8 May 2023, NGS Super sent an email to Ms Burneikis
[2023] FWC 2128
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attaching a letter that responded to the issues she had raised and that also confirmed the
redundancy decision and that Ms Burneikis’ employment would be terminated as a
result.”
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[36] The Applicant attacks the Respondent’s efforts to consult her as being inadequate,
procedurally deficient, absent procedural fairness or natural justice, and/or just going through
the motions.
[37] Consultation under clause 28 of the Award necessitated the Applicant being told or put
on notice that her employment was in jeopardy due to redundancy. It also required her to be
given an opportunity to consider this likely or potential outcome, and to provide ‘feedback’ in
respect of same. In this case, I find that the evidence discloses that the Respondent has satisfied
its obligations as to consultation (under clause 28 of the Award) in respect of the Applicant’s
redundancy, i.e. she was put on notice about her redundancy, she was given time to consider
same, and she provided feedback (including in writing). Further, there is simply no evidence
whatsoever that any further consultation, or any further consideration of the issues raised by the
Applicant, would have achieved any different result.
[38] In her evidence and submissions, the Applicant has sought to intermingle (or mix
together) issues going to s.389(1)(b) of the Act, with issues under s.389(2) of the Act. I have
previously pointed out the difficulty with such an approach:
“… Sections 389(1)(b) and 389(2) are separate and individual limbs. Different issues
arise in respect of relevant findings to be made as to compliance or non-compliance with
each limb. Whilst non-compliance with one limb gives rise to a redundancy not being
genuine under s.389 of the Act, it will not always (or even usually) be the case that a
failure to consult will mean that redeployment would have been reasonable. Indeed, in
many cases, no matter how much consultation could or should have occurred, there was
never a reasonable basis for redeployment.”
Burneikis v NGS Super Pty Limited [2023] FWC 2128 delivered 25 August 2023 per Boyce DP