Unfair dismissal; employers beware

Even in the desperate circumstances in which many business in the hospitality, restaurant and food industries find themselves in due to the Covid pandemic, the termination of employment of an employee may well be held by the Fair Work Commission to be relevantly unfair if the employer is not careful with the consultation obligations generally required by the law.

“It is evident therefore that an option available was for the Respondent to transfer Mr Liuk to lower paid duties with notice or with a payment calculated in accordance with Clause 36.1(c), if no notice of the transfer was given. In this case, various options for lower paid duties were raised but it is apparent that the parties were not aligned on the rate of remuneration that might have been available for any of the positions offered with ongoing work.

I accept that the Respondent has been substantially impacted by COVID-19 and the decision-makers are undoubtedly under enormous pressure as a result. It needs to be appreciated that the industry in which the Respondent operates has been severely and profoundly impacted by COVID-19 and the measures put in place to combat it. I also accept the profound impact COVID-19 has had on Mr Liuk. He went for months without work and his normal income which placed him under enormous financial pressure and stress. This case is the culmination of circumstances which neither party invited.

Nonetheless, I consider the failure of the Respondent to adequately consult with Mr Liuk regarding the decisions it made regarding his employment due to the impact of COVID-19 and the processes it adopted in discussing the effect and redeployment opportunities renders the dismissal harsh. Accordingly, I find that Mr Liuk’s dismissal was unfair. Mr Liuk’s application for unfair dismissal remedy is therefore granted.”

Liuk v Dainty Age One Pty Ltd T/A Dainty Sichuan Food  [2021] FWC 1075 delivered 26 February 2021 per Clancy DP