There may be occasions (see para 119 of this decision of the Fair Work Commission) when a redundancy of a job constitutes an unfair dismissal.
“[114] Section 387 provides:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person–whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWA considers relevant.”
[115] I now consider these matters.
Valid reason s 387(a)
[116] A valid reason for dismissal is one that is sound, rational or defensible.21
[117] I have found that the redundancies were not a sham. The operational reasons for the redundancies, based as they were on the Association’s financial circumstances, were objectively reasonable and were a material and primary reason for the redundancies.
[118] Such operational considerations are sound, rational and defensible reasons for dismissal.
[119] However, I have also found that the timing of the redundancies was tainted in part by the employer’s view that Mr Cioffi was being difficult and underperforming. This view was generally unreasonable, though Mr Cioffi to an extent, but only a limited extent, brought the issue to a head by his failure to read the room and agree to reductions in hours without unduly straining the relationship. His push-back against questions about his duties and the employer’s need for reductions in working hours was understandable but contributed somewhat to the breakdown in the relationship.
[120] Considered overall, there was a valid reason for dismissal except to the extent that its timing was unreasonably influenced by performance and conduct concerns.
[121] This weighs somewhat, but only somewhat, against a finding that the dismissal was unfair.
Whether notified s 387(b)
[122] Mr Cioffi was notified of the reason for dismissal on the day he was dismissed. He was informed that it was a financial decision to save costs.
[123] This is a neutral consideration.
Opportunity to respond s 387(c)
[124] I have found that:
- the decision was pre-determined. The 22 July 2024 meeting was a termination meeting, not a consultation meeting;
- the reason for dismissal was advised at the outset of the meeting before Mr Cioffi was given the opportunity to speak. No forewarning of the purpose of the meeting was provided;
- prior to the decision being communicated, there was no discussion or opportunity to discuss mitigation options short of redundancy (such as the feasibility of reducing hours or trialling the 10/10 arrangement for a longer in-competition period); and
- whilst, in the months preceding, there had been discussions about reducing hours and twice hours had been reduced despite degrees of protest by Mr Cioffi, on both occasions (April 2024 and June 2024) Mr Cioffi was informed that the reason for reducing hours was to reduce operating costs.
[125] I observe that whilst Mr Cioffi stated during the termination meeting that he felt that dismissal may be the best result, this was not in any sense an acceptance of the dismissal. In the intensity of the moment, he was seeking to de-escalate the months of tension and to end the meeting without conflict.
[126] These considerations collectively constitute a denial of procedural fairness. Consultation about the need to save costs had occurred prior. However, the absence of a meaningful opportunity to respond to the subsequent decision to make the positions redundant weighs materially in favour of a finding that the dismissal was unfair. “
Cioffi v Murray Bridge Basketball Association Incorporated [2024] FWC 2761 delivered 3 October 2024 per Anderson DP