Unfair dismisal, redundancy and consultation

An employer will have an absolute jurisdictional defence to an unfair dismissal claim brought under the Fair Work Act if it meets a number of criteria including that it complied with the consultation obligations of an applicable modern award or enterprise agreement. This passage from a recent unfair dismissal cased indicates how the Fair Work Commission approaches this issue.

“Genuine redundancy objection

[78] Section 389(1) provides that a dismissal is a case of genuine redundancy if the employer no longer required the person’s job to be formed by anyone because of changes in the operational requirements of the enterprise and the employer complied with any obligations in a modern Award to consult about the redundancy.

[79] However, section 389(2) prescribes that a dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise.

[80] In this case I accept that the respondent no longer required the applicant’s job to be performed by anyone because of changes in its operational requirements. This was explained to the applicant and others affected on 20 October 2021 and is reflected in the dismissal letter provided to the applicant.

[81] The applicant submits that the Clerks – Private Sector Award 2020 [MA000002] (the Award) applied to the applicant’s employment. This is consistent with the respondent’s Form F3 Employer response where the respondent stated that the employment was underpinned by the “Clerical Employees Award MA000002”.

[82] Considering Clause 4 ‘Coverage of the Award’ and that the respondent’s response identifies it as being in the Recruitment and Labour Hire Industry I am satisfied that the Award applies to the respondent. Also considering the key duties and responsibilities in the Mobilisation Officer role and the typical duties and skills for classifications covered by the Award as prescribed in Schedule A ‘Classification Structure and Definitions’ I am also satisfied that the Award applied to the applicant’s employment.

[83] Clause 38. Consultation about major workplace change of the Award is set out below:

  1. Consultation about major workplace change

38.1 If an employer makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must:

(a) give notice of the changes to all employees who may be affected by them and their representatives (if any); and

(b) discuss with affected employees and their representatives (if any):

(i) the introduction of the changes; and

(ii) their likely effect on employees; and

(iii) measures to avoid or reduce the adverse effects of the changes on employees; and

(c) commence discussions as soon as practicable after a definite decision has been made.

38.2 For the purposes of the discussion under clause 38.1(b), the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including:

(a) their nature; and

(b) their expected effect on employees; and

(c) any other matters likely to affect employees.

38.3 Clause 38.2 does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer’s interests.

38.4 The employer must promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussion under clause 38.1(b).

38.5 In clause 38 significant effects, on employees, includes any of the following:

(a) termination of employment; or

(b) major changes in the composition, operation or size of the employer’s workforce or in the skills required; or

(c) loss of, or reduction in, job or promotion opportunities; or

(d) loss of, or reduction in, job tenure; or

(e) alteration of hours of work; or

(f) the need for employees to be retrained or transferred to other work or locations; or

(g) job restructuring.

38.6 Where this Award makes provision for alteration of any of the matters defined at clause 38.5, such alteration is taken not to have significant effect.

[84] Considering the facts of what occurred here I am satisfied the respondent made a definite decision to make major changes to the organisation that were likely to have significant effects on employees including the termination of employment I find the applicant was an affected employee. Consequently, the Award obliged the respondent to take the prescribed steps and actions in the balance of clause 38 above.

[85] It is doubtful it could fairly be said that the respondent gave notice of the changes to the employees who may be affected and their representatives prior to any discussions. Rather it seems the respondent advised employees collectively. The employees had no opportunity to arrange representation: immediately after being informed of the changes there were individual discussions with employees including the applicant.

[86] Relevantly for this case, clause 38.2 required the respondent to give affected employees in writing all relevant information about the changes including their nature, expected effect on employees and any other matters likely to affect employees for the purposes of the discussions under 38.1(b). In other words, the obligation to provide information in writing must, quite unsurprisingly, be satisfied before any discussions were held with employees.

[87] In this case clearly the respondent did not provide all relevant information in writing about the changes and likely effect prior to the discussion with the applicant.

[88] Given the above I find the respondent did not comply with a number of its obligations in the Modern Award to Consult about the Redundancy.

[89] Considering section 389(1)(b), my decision is therefore that the applicant’s dismissal was not a case of genuine redundancy.”

Graydon v Talent Konnects Pty Ltd T/A Talentko (2022) FWC 1905 delivered 22 July 2022 per Williams C