In a recent decision the Fair Work Commission (FWC) found that an employee who had been made redundant was unfairly dismissed within the meaning of the Fair Work Act 2009 (Cth) (‘the Act’). The FWC firstly established that the dismissal was not a genuine redundancy as defined in section 389 of the Act because the employer failed to comply with the consultation obligations in the applicable modern award. The employer attempted to raise the COVID-19 pandemic as a defence but the FWC made clear that consultation requirements remain firmly in place. The FWC then considered whether there had been an unfair dismissal under section 385 of the Act. The relevant question was whether the dismissal was ‘harsh, unjust or unreasonable.’ Several factors led the FWC to establish an unfair dismissal. These included the employer’s failure to engage in any discussion with the employee about operational changes and the fact that two employees were hired in similar positions after the redundancy.

The FWC also referenced the employer’s failure to consider the potential operation of JobKeeper. Whilst the FWC accepted that the exact operation of JobKeeper was not known at the time, they noted that the known purpose was to minimise job loss and redundancies. The FWC also pointed out that many other employers managed to maintain employees until the JobKeeper payments came through. Overall, the decision is an important reminder of the ongoing significance of consultation obligations and demonstrates the need for employers to consider the JobKeeper scheme before making an employee redundant. Contact M+E for further information and advice on redundancy issues.

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