Unfair dismissal and redundancy; onus of proof

When an employer raises the jurisdictional defence to an unfair dismissal case of genuine redundancy, it bears the legal and evidentiary onus of satisfying the Commission that the legal elements have been made out.

“WA Shed Commercial bears the onus of proving on the balance of probabilities that the redundancy was due to changes in operational requirements. 20 If it is wrong to describe there being an onus of proof on WA Shed Commercial, which I do not consider to be the case, it remains that there must, in any event, be material before me which satisfies me that there were genuine operational reasons for WA Shed Commercial no longer requiring Mr Harby’s job to be performed by anyone.

While the redundancy letter of 1 July 2019 speaks of the ‘[C]ompany’s decision to restructure its operations’ to ‘ensure the future success of the business,’ there is no other evidence before me apart from the assertion in the letter.

It is unnecessary to labour the point further. WA Shed Commercial has not presented any documentary or other evidence to this Commission in response to Mr Harby’s application. In these circumstances, the only conclusion open to me is that Mr Harby’s dismissal was not a case of genuine redundancy. Therefore, I turn to consider whether his dismissal was unfair.”

Harby v Western Australian Shed Commercial Pty Ltd T/A WABG (2019) FWC 7827 delivered 25 November 2019 per Beaumont DP