Redundancy; the obligation to consult

A failure by an employer to comply with the consultation requirements of an applicable modern award or enterprise agreement will be fatal to the employer being entitled to rely upon the jurisdictional defence of genuine redundancy.

Nevertheless, unless the lack of consultation results in injustice to the employee or the employee may have been able to persuade the employer otherwise if consultation had taken place (which is the case below), it does not follow that a failure to consult will res ipsa loquitur mean that the dismissal is relevantly unfair.

“Vice President Watson observed in Maswan v Escada Textilvertrieb T/A ESCADA [2011] FWA 4239 (“Maswan”), at paragraph [39]:

“[39] In my view a decision to dismiss on account of redundancy will only be harsh, unjust or unreasonable if the rationale for the decision is seriously undermined or if there is a serious error in procedure such that renders the termination unfair in the circumstances. Here the decision appears open to the employer to make. The failure to consult is not a trivial matter. But as it is clear that consultation was highly unlikely to have negated the operational reasons for the dismissal or lead to any other substantive change, I do not believe that the failure to consult prior to the date of termination rendered the dismissal unfair. Given the evidence in relation to the operational need to restructure, I am of the view that it is likely that Mr Maswan would have been dismissed in any event, even if timely consultation had occurred.”

While it would seem that such consultation may have been unlikely to have averted the dismissal because the Applicant would have been unlikely to have indicated that he could work every weekend, the Applicant should still have been given the opportunity to agree to that work pattern in appropriate consultation. The absence of appropriate consultation pursuant to the Award results in the termination of the Applicant’s employment being not a case of genuine redundancy pursuant to s.389 of the Act.”

Raftery v Sonder Cafe (2019) FWC 6919 delivered 21 October 2019 per Cross DP