Redundancy defence is strict

Where an employer seeks to defend an unfair dismissal case brought against it on the ground that the termination of employment arose as a genuine redundancy, the employer bears the evidential burden of demonstrating that it complied with the requirements of any applicable award about consultation. This requirement is strict, as this extract from such a case demonstrates.

“The first point to note is that the company’s decision to conduct a review of the Rosie operations did not enliven the consultation clause, because at that time, no ‘definite decision’ had been made to make a major change, nor was it clear whether any change would have any impact on employees. It was not until 23 May 2022 that Ms Masihpour decided that Ms Quiah’s position was redundant. This decision triggered the application of clause 38. The same day, Ms Masihpour called Ms Quiah to give her notice of the change, as required by clause 38.1(a), and to discuss the change with her, as required by clause 38.1(b). She did so as soon as practicable after the decision was made, in accordance with clause 38.1(c). I accept Ms Masihpour’s evidence that she discussed with Ms Quiah the effect of the change, namely the end of her employment, and measures to avoid or reduce the adverse effects of the change. Those measures were that she would assist Ms Quiah to transition and find other employment. She also explained that she had considered redeployment and did not consider there to be any options in this regard because Ms Quiah was not suitable for the two available positions. Ms Quiah did not disagree with this or contend that there were other suitable redeployment options.

[28] However, clause 38.2 of the Award required the company to provide information in writing to Ms Quiah about the nature and effect of the proposed change and any other matters likely to affect her. Even though the matter was discussed on the telephone, the company did not provide information to Ms Quiah in writing about the full effect of its decision; this effect was not just that her position was redundant, but that the company did not consider there to be any suitable redeployment options for her. This matter was omitted from Ms Masihpour’s letter to Ms Quiah of 23 May 2022. It was not addressed in writing elsewhere. In my view, clause 38.2 required this matter to be addressed in writing. Therefore, the company did not comply fully with its obligations under the Award to consult with Ms Quiah about her redundancy. The consequence of this conclusion is that the dismissal of Ms Quiah was not a ‘genuine redundancy’ within the meaning of s 389.”

Quiah v Vital Care Pty Ltd (2022) FWC 2602 delivered 28 September 2022 per Colman DP