Richard Clancy, executive director of workplace relations at the Victorian Employers Chamber of Commerce and Industry, told SmartCompany the FWA found the termination was unfair on the basis of UES’s failure to consult.
“The basic proposition was that there would be a genuine redundancy if the job was no longer required and the employer complied with the obligation to consult under the award or agreement. The majority view was, provided that you complied with those, it was not an unfair dismissal,” says Clancy.
He says VECCI believes the decision came down to “common sense” and had reduced the level of compensation paid to “a more reasonable level”.
“Our advice to employers is if there’s an obligation to consult make sure you consult.”
Charles Power, partner at law firm Holding Redlich, told SmartCompany if an employer meets the criteria for genuine redundancy set out in the legislation they can select employees for redundancy on the basis of performance or other aspects including their past employment history.
“In this case, where there was a decision made to reduce the number of people in the warehouse, if they had met the requirements for a genuine redundancy then there would not have been unfair dismissal exposure,” says Power.
The requirements for a genuine redundancy are, firstly, to satisfy consultation obligations under any award or agreement and, secondly, that it was not reasonable to offer redeployment to another job.
“In this case because the employer did not meet the consultation obligation it was not a genuine redundancy, so that opened the door for the claim,” says Power.
He says the failure to consult provided the opportunity for the fairness of the assessment to be contested. However, the end result was the commissioner found the only thing wrong with the retrenchment was failure to consult and it wouldn’t have prevented the retrenchment.
“There will be cases where FWA will decide even if there had been failure to consult it would not have lengthened the employment relationships, so it is not unfair despite that obligation being contravened.
“It’s a reminder that you really need to be aware of those consultation obligations because they will expose you even if it is a true redundancy situation. The fairness will be open for assessment if you don’t consult when you are required to.”
