Redundancy; the requirement for bona fide chance to influence

For a redundancy to be a jurisdictional defence to an unfair dismissal challenge, the termination of employment must constitute a “genuine redundancy, which requires an employer make out a number of requirements (see Fair Work Act sec 389) including that the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy”.

The Fair Work Commission has repeatedly pointed out that this consultation must be real and meaningful, although I very often see cases where the employer has made up its mind before there is any discussion with the employee. Here a senior member of the Fair Work Commission summarizes the law.

“The obligations contained clause 11 and 26 are obligations to consult, not obligations to simply give notice. The obligation to give notice differs significantly from the obligation to consult. Unlike the obligation to give notice, the obligation to consult does not simply entail advising an employee of what is to happen. Consultation requires that the employee concerned is provided with a bono fide opportunity to influence the decision maker……………There is therefore no evidence before me that Mr Gosling was consulted before the decision to terminate his employment was made, that he had an opportunity to raise any matters about the change with MMS, or that MMS gave consideration to any matters that he raised if, in fact, Mr Gosling did so.”

Gosling v Marine Manning Services Pty ltd (2018 FWC 25) delivered 8 January 2018 per Binet DP