Redundancy consultation must be more than “perfunctory”

The Fair Work Commission has, in finding an employee was unfairly dismissed, reminded employers that redundancy consultation should be “substantive” and “not merely perfunctory”. In April this year, My Shared Services advised a sales support consultant, while she was on personal leave, that her position was redundant due to a pandemic-related decline in novated lease enquiries. Hearing the employee’s unfair dismissal claim, Deputy President Val Gostencnik found she was covered by the Clerks – Private Sector Award 2010, which states that when an employer has made a “definite decision” to make major changes that could significantly affect employees, then it must give notice of and discuss the changes as soon as practicable, including their likely effect and measures to avoid or reduce any adverse effects. He accepted the employer’s concession that it failed to comply with this obligation, and found the redundancy was not genuine. The employer argued its redundancy process was impacted by the various physical distancing measures imposed because of the pandemic, but Deputy President Gostencnik said nonetheless it “fell short of appropriate”. “The right to be consulted about a decision to reduce staffing numbers which may impact the ongoing employment of an employee is a substantive right and not merely perfunctory,” he said. The employer should have consulted the employee about the proposed redundancy prior to terminating her employment, and its failure to do so meant she was “deprived the opportunity of discussing with her employer options to mitigate or ameliorate effects of redundancy on her”. “Consequently, mitigating options such as reduced working hours or leave without pay were not discussed or considered,” he said, finding her dismissal was harsh. Deputy President Gostencnik also found redeployment was not discussed with the employee, but nonetheless wouldn’t have been possible. “In the circumstances, but for the failure to consult the [employee], dismissal would otherwise have been a case of genuine redundancy and so would not have been regarded as unfair.” Remedy (if any) will be decided at a later date. Duckworth v My Shared Services Pty Ltd [2020] FWC 4865 (4 November 2020)why-redundancy-is-no-longer-a-dirty-word Source hrdaily 6 November 2020