FWC weighs in on consultation requirements during workforce reduction
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case where a worker challenged the end of his employment at a construction company, which the employer attributed to redundancy.
The worker presented several arguments: his duties were still being performed after his departure, new staff had been hired shortly before his termination, and the selection process didn't follow what he described as the industry practice of "last on, first off."
The case centered on consultation requirements during redundancy processes. The worker stated that during his redundancy notification meeting, he was simply handed a letter to sign and told that another staff member would explain it later.
The worker started as a leading hand in drainage at the Walkerston Bypass project in July 2022. The project involved constructing a new two-lane rural highway to connect the Peak Downs Highway to the Mackay Ring Road in Queensland. In March 2023, he moved to the roads section.
On November 30, 2023, the superintendent met with the worker and four other employees about upcoming redundancies. The worker received a "Notice of organisational change" letter. His employment ended on December 22, 2023.
The enterprise agreement incorporated consultation terms from Schedule 3, requiring employers to discuss changes with employees and provide written information about expected effects. The Commission explained that these discussions "should not be treated as mere formalities and should not be perfunctory."
The senior project manager had proposed reducing ten salary roles and five direct hire wages roles before the Christmas break in 2023. The employer's evidence showed they reduced leading hand positions from five to two.
During the hearing, the worker testified that they continued using temporary hire employees until June 2024. He also questioned why the employer retained labour hire workers while making permanent staff redundant.
The Commission addressed this point in its decision: "The question is not whether discrete duties or tasks from [the worker's] job were subsequently performed by others... Downsizing can give rise to a finding under s 389(1)(a), as contemplated in the explanatory memorandum to the Fair Work Act."
Under section 389 of the Fair Work Act 2009, the Commission had to determine whether this was a genuine redundancy by examining if the job was truly no longer needed and if proper consultation occurred.
The Commission found issues with the consultation, stating: "The meeting, with [the superintendent], was perfunctory. [The worker] was told to sign the letter, and that [the senior people & culture advisor] would tell him all about it the following week. This tends to undermine the claim, on the face of the letter, that the purpose of that meeting was to 'discuss whether there are any suitable roles within [the employer] which may be available to you for redeployment.'"
However, the Commission ultimately concluded: "Having considered each of the matters specified in s 387 of the Fair Work Act to the extent necessary, I am satisfied that the dismissal of [the worker] was not harsh, unjust or unreasonable." The unfair dismissal application was dismissed.
