Redundancy may be real but unfair

Where an employer terminates the employment of an employee on the ground of redundancy but fails to meet the consultation obligations of an applicable modern award or enterprise agreement, the employer will not be able to rely upon the genuine redundancy defence in an unfair dismissal case and the Fair Work Commission will then be required to then determine whether the dismissal was harsh, unjust and unreasonable.

And there are occasions when the dismissal will be ruled to be relevantly unfair even where the job had become redundant. He is an example.

“I accept that the rationale for the dismissal of the Applicant was soundly based on the downturn in the Respondent’s business, that downturn in business not challenged by the Applicant. However, the manner of the dismissal was an object lesson in how not to affect a termination of employment. There was an absence of clear communication or any formal documentation, the brief telephone communication that did occur was oblique as to the status of the Applicant’s employment, there was a reliance on text messages requiring the return of company property and there was failure to meet directly with the Applicant to communicate the dismissal when that would have been the appropriate course of action. The combination of these factors combines to weigh in favour of a finding that the manner of dismissal was unreasonable. Added to this is the impact of the dismissal on the Applicant in the midst of a pandemic which also weighs in favour of a finding that the dismissal was harsh.

Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?

I have made findings in relation to each matter specified in section 387 as relevant.

I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable. 12

I accept that the position of the Applicant was no longer required because of the Covid pandemic related downturn of the Respondent’s business. However, the Respondent failed to consult the Applicant as it was required to in accordance with the Miscellaneous Award. It also carried out the dismissal in a manner entirely lacking in proper process or with regard to the impact of the manner of the dismissal on the Applicant.

Due to the position of the Applicant being no longer required, and as I have found above, most of the s.387 criteria are neutral factors in my consideration. It is in respect of those other factors that I have considered at s.387(h) that weight in favour of a finding that the dismissal of the Applicant was unfair. Having considered each of the matters specified in section 387 of the Act, and in particular those factors under s. 387(h), I am satisfied that the dismissal of the Applicant was harsh and unreasonable.”

Roche v Tunstall Plant Hire PTY LTD (2020) FWC 5417 delivered 19 October 2020 per Masson DP