Unfair dismissal and consultation about redundancies

When the Fair Work Commission is deciding whether the termination of an employee is a genuine redundancy, the issue of the sincerity of the consultation by the employer often arises. Here is an extract from a case decision making that point.

“In Wang v Specialty Fashion Group Ltd (Wang) [2011] FWA 6872 Vice President Watson, was confronted with a circumstance comparable to the one at hand. Relevantly, in Wang both the decision to effect redundancies and the identity of the employees to be made redundant were determined prior to any discussion with the workforce. In fact, the only communication with the workforce were the discussions in which the effected employees were informed of their redundancy. With respect to whether the employer complied with section 389(1)(b) of the Act, Vice President Watson found:

“[28] In this case a definite decision to make 21 redundancies in the Design and Production department was made on or about 1 June. Representatives of management then met amongst themselves to select the employees to be made redundant. They then planned an announcement to the workforce and made the announcement on 23 June. On that day they individually notified each of the redundant employees that they were redundant effective that day.

[29] SFG contends that the “one on one” discussion with the employees were an opportunity for employees to raise selection issues and are properly viewed as an adequate consultation process. I reject that submission. The employees were told of the decisions without any invitation for matters relevant to the decision to be raised so that they could be considered by SFG. There was no indication of an opportunity for input or the SFG’s open mind on issues such as selection, redeployment, payments and alternatives to redundancy.

[30] It may be that consultation was unlikely to alter the situation, but that is not the question I need to consider. The definition of genuine redundancy only applies if SFG has complied with its consultation obligations. On the evidence before me I am unable to conclude that it has.”15F 16

In this matter, the Respondent communicated with the Applicants regarding the redundancies on two occasions. Firstly, when the Respondent called each of the Applicants and notified them of their redundancies. Secondly, when the redundancies were confirmed via a letter sent to the Applicants. On neither occasion were the Applicants given an opportunity to provide meaningful input on issues such as selection, redeployment, payments and alternatives to redundancy. It is well accepted that section 389(1)(b) of the Act requires an employer to meaningfully consult with their employees regarding a proposed redundancy.16F 17 As was found in Wang, I find that the Respondent has not complied with section 389(1)(b) of the Act.

I find that the Respondent has not complied with its consultation obligations under the Agreement.”

Botiki and others v WorkPac Mining Pty Ltd (2021) FWC 508 delivered 8 March 2021 per Riordan C