Unfair dismissal and consultation obligations

Here are several examples referred to in the Fair Work Commision’s unfair dismissal bench book in which the Commission has declined an employer’s attempt to rely upon the jursdictional defence of genuine redundancy because the employer has been found not to have met the consultation provisions of an appliocable modern award or enterprise agreement.

“Maswan v Escada Textilvertrieb t/a ESCADA [2011] FWA 4239 (Watson VP, 8 July 2011).
The employer had been experiencing financial difficulties and decided to restructure their operations. The employer failed to notify and consult with the employee in accordance with the award.
Note: Although the termination was not a case of genuine redundancy due to a failure to consult, it was found that the same conclusion would likely have been reached whether or not there was a failure to consult. Therefore, the dismissal was not unfair.

Kaysal v DBM Handrails Pty Ltd [2010] FWA 8426 (Blair C, 3 October 2010).
The employer issued a notice advising employees of a considerable reduction in available work and therefore a need to reduce staff numbers. It was found that the notice did not constitute adequate consultation.

Chamia v Quikfund Australia [2012] FWA 7637 (Macdonald C, 13 June 2012).
The employer claimed that the employee had been advised of the closure of the warehouse in which she worked. It was found that even if the alleged telephone conversation occurred, the employer did not inform the employee that her role would no longer exist.
As the employee was neither given an opportunity to influence the decision, nor was she considered for redeployment into another role, it was found that consultation did not occur and the dismissal was not a case of genuine redundancy.”