Redundancy, unfair dismissal and the relevance of consultation

A failure by an employer to carry out consultation with an employee about a redundancy if mandated by a modern award or enterprise agreement will mean that the employer will fail in seeking to defend a dismissal in an unfair dismissal case as a genuine redundancy, but it does not follow that a failure to consult if thus mandared by an industrial instrument will therefore mean that the termination of employment was unfair. That is a separate question.

“[7] Nor am I so satisfied in relation to the second heading in the grounds of appeal. I do not accept the Appellant’s characterisation of the Deputy President’s decision that the Appellant’s failure to consult and the conclusion that the dismissal was not a genuine redundancy meant the dismissal was therefore unfair. The Deputy President clearly found that there was a failure to consult and took this into account in the overall exercise of weighing the various factors under

s.387. He also took other matters into account as he was required to do. The Appellant also contends that the Deputy President misconstrued the law and failed to take into account a series of first instance decisions which the Appellant says stand for the proposition that in circumstances where consultation would have made no difference to the ultimate outcome, the failure to consult does not render the dismissal unfair. The proposition cannot be so baldly stated. [8] In Smith v Alice Car Care Centre Pty Ltd,2 the Commission concluded that there was an absence of consultation and redundancy was inevitable but the Applicant was nonetheless

unfairly dismissed.3 In Clare v Bet Deck Pty Ltd,4 the Commission cited with approval an earlier decision of Deputy President Hampton where it was said that ‘The weight to be given to be given to a failure to consult depends primarily on the degree to which, if any, the absence of proper consultation led to any unfair in practice.’5

[9] However, there is an important point of distinction between the decisions to which the Appellant referred and the decision at hand. In each of the former, there was a finding that deployment was not reasonable or available. In this case, the Deputy President expressly concluded that there was scope for some accommodation of the Applicant’s position, and that the failure to consult denied her a real opportunity to keep her employment.6 In the face of that finding the earlier cases are less apt. In the case of Maswan v Escada Textilvertrieb7 the Commission observed:

If the outcome of consultation was less predictable the failure to consult over proposed changes could render the termination unfair.8

[10] To the extent that the Applicant takes issue with the Deputy President’s findings of fact under this heading, I note that s.400(2) limits appeal grounds to those decisions involving a significant error of fact. I am not satisfied that there is an arguable case in relation to the Applicant’s contentions on these grounds of appeal.

[11] Finally, the Deputy President considered the various matters relating to remedy as he was required to do. He did not overlook mandatory considerations. He applied the Sprigg formula and arrived at a remedy that necessarily involves the exercise of some discretion. I am not satisfied that the third broad ground of appeal discloses an arguable case with some real prospects of success.”


BMM Productions Pty Ltd v Toplass (2023) FWC 3477 delivered 22 December 2023 per Roberts DP