The Fair Work Commission will generally approach the assessment of whether there has been adequate consultation about the dismissal of an employee in a practical manner, thus
“(b) Was there Consultation about the Redundancy
[27] In Maswan v Escada,6 (“Maswan”), Vice President Watson found as follows:
“[39] In my view a decision to dismiss on account of redundancy will only be harsh, unjust or unreasonable if the rationale for the decision is seriously undermined or if there is a serious error in procedure such that renders the termination unfair in the circumstances. Here the decision appears open to the employer to make. The failure to consult is not a trivial matter. But as it is clear that consultation was highly unlikely to have negated the operational reasons for the dismissal or lead to any other substantive change, I do not believe that the failure to consult prior to the date of termination rendered the dismissal unfair. Given the evidence in relation to the operational need to restructure, I am of the view that it is likely that Mr Maswan would have been dismissed in any event, even if timely consultation had occurred.”
[28] While not apparently subject to an obligation to consult with the Applicant, the Respondent nonetheless went to detailed and appropriate lengths to consult with the Applicant. The Respondent met on multiple occasions with the Applicant to discuss her redundancy.”
Thompson v Cenversa Services Pty Ltd – [2024] FWC 1902 22 August 2024 per- Cross DP