Unfair dismissal and genuine redundancy

This is an extract from a quarterly review forwarded by the Fair Work Commission to practitioners and contains a summary of an unfair dismissal case in which the applicant claimed a remedy for unfair dismissal after having had the employment terminated and having been being advised later that the position had been advertised.

The gravamen of the case is to the effect that although a dismissal for alleged redundancy may not attract  the jurisdictional defence because of a lack of consultation, an applicant may still fail in a claim for unfair dismissal if the employer nonetheless had abolished the job.

“Liu v JHC Corporate Pty Ltd (2021) FWC 5345

Background

The respondent in this unfair dismissal application told 4 employees, including the applicant, that they would be made redundant in March 2021. After the applicant’s employment finished, someone told her that they had seen an advertisement for her former position. The applicant contended that her dismissal was not due to redundancy but due to other matters including sexual harassment and bullying, and that if her dismissal was a redundancy, it was not a genuine redundancy because the respondent did not reduce its employee numbers. The respondent argued that it advertised a position because its workload picked up at around the same time as the applicant’s dismissal, but the additional work was in digital printing and the respondent did not think that the applicant had the necessary skills to perform the role.

Outcome

The Commission found that the applicant was covered by the Graphic Arts, Printing and Publishing Award 2020 despite the respondent’s argument that the applicant was not subject to an award or enterprise agreement. As a result, the obligation to consult about redundancy under s.389(1)(b) of the Fair Work Act was enlivened. The respondent failed to consult in accordance with cl 37 of the Award with the affected employees about major change likely to have significant effects. The Commission found that at best there was a one-way conversation followed by a termination letter. The respondent should have explained to employees why the decision was necessary, the reasons for selecting those employees, provided employees time to reflect on the proposal and then asked for any questions or alternate proposals in a resumed meeting the next day.

The Commission found the applicant’s termination was not a genuine redundancy within the limited meaning of s.389 due to the respondent’s failure to consult, but was a redundancy nonetheless, as the respondent no longer required the applicant’s job to be performed by anyone because of changes in operational requirements. Despite the advertisement for a new role after the applicant’s termination, it was not reasonable in all the circumstances for the applicant to be redeployed.

As the applicant’s termination was not a genuine redundancy, the Commission had to consider whether the dismissal was unfair. The Commission noted that a failure to consult may not be strongly considered by the Commission in determining whether a dismissal was unfair, where consultation was highly unlikely to have negated the operational reasons for the dismissal. The Commission held that changes in operational requirements and the lack of redeployment opportunities constituted a valid reason for dismissal. The Commission found insufficient evidence to establish that the applicant’s dismissal was a result of harassment or bullying. The Commission found that the dismissal was not harsh, unjust or unreasonable and dismissed the application.”