If an employer has a “statutory” obligation under an enterprise agreement or modern award to consult an employee about the possibility that the employee’s position has become redundant, and fails to do so, then the employer cannot rely upon the genuine redundancy defence to an unfair dismissal case. But it does not follow that the dismissal is relevantly unfair.
“[36] To be balanced against these matters is the respondent’s failure to discharge its
consultation obligations. A failure to consult may, but does not necessarily, mean a dismissal
is harsh, unjust or unreasonable.35 It is a matter that needs to be considered together with the
other factors in s 387 of the Act and the overall assessment of fairness.36 In this case, I am
satisfied that the respondent’s failure to consult with Mr Li about the redundancy renders the
dismissal unfair within the meaning of s 385 of the Act. This is notwithstanding the valid
reason for Mr Li’s dismissal and the appropriate weight I have given to this reason.”
Li v Cosmetic Laboratories (Aust) Pty Ltd [2026] FWC 2674 delivered 16 July 2026 per Millhouse DP