Worker argues she was 'targeted' after return, claims inadequate consultation
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case involving a human resources business partner who was made redundant shortly after returning from parental leave.
The case highlighted issues surrounding genuine redundancies and the consultation processes in workplace restructuring.
The worker, who had been with the company for several years, challenged the legitimacy of her redundancy. She argued that the decision may have been influenced by her recent return from parental leave, rather than genuine operational requirements.
The worker also questioned the adequacy of the consultation process and the criteria used to select her for redundancy. These claims raised important questions about the balance between business decisions and employee rights, particularly in the context of global restructuring directives.
HR business partner on parental leave
The worker, a human resources business partner, had been employed by the company since November 2016. She took parental leave from April to December 2023.
Upon her return, she noticed changes in her role and responsibilities. In early January 2024, the operations director proposed transitioning her to casual employment or facing potential redundancy.
The employer, an Australian subsidiary of a global company headquartered in Shandong province, China, was instructed by its headquarters to reduce its workforce to meet a target of 120 employees.
This directive came after the approval of the company's 2024 business plan in December 2023. The Australian business was instructed to reduce around 10 positions to achieve this target.
Redundancy of HR staff
The operations director assessed the three HR business partners against five criteria: recruitment experience, communication skills, English proficiency, work efficiency, and multi-tasking skills.
The worker scored lowest in recruitment experience, communication skills, and English proficiency. The operations director explained her assessment:
"[The worker] scored the lowest out of the three HRBPs in terms of recruitment experience, communication skill and English proficiency. [The worker] was unconfident about her English skill and from what I recall she has either never or rarely held interviews with native English speakers. I think this is a necessary skill to be a good HRBP in Australia."
Moreover, the employer held meetings with the worker on January 19 and 23, 2024, to discuss the proposed restructure and potential redundancy. They offered her a casual position, which she declined.
Following these meetings, the employer confirmed the redundancy decision in writing, providing four weeks' notice and a redundancy payment equivalent to 13 weeks' pay.
HR partner’s unfair dismissal claim
The worker filed an unfair dismissal application on March 12, 2023. She argued that the redundancy was not genuine and suggested she might have been targeted due to her recent parental leave. She also claimed the consultation process was inadequate.
On the other hand, the employer maintained that the redundancy was genuine, citing changes in operational requirements and compliance with the consultation obligations under the Clerks - Private Sector Award 2020.
They filed a response on March 19, 2024, raising the jurisdictional objection that the dismissal was an instance of genuine redundancy.
Job no longer required?
The FWC accepted the employer's evidence about the need to reduce staffing and the process used to select the worker for redundancy. The Commission found that the job was no longer required due to changes in operational requirements.
The FWC determined that the employer had met its consultation obligations under the Award. The Commission noted:
"I am satisfied that notice was given to [the worker] of the definite decision taken by [the employer] to reduce its Australian staffing generally and the likely impact of that decision on her own position. In particular, such notification was likely given in the discussion [the operations director] held with her on 4 January 2024."
The FWC also found that the employer had considered redeployment options, including offering a casual position to the worker. The Commission stated:
"I am satisfied [the employer] considered the potential for redeployment of [the worker] into another position and in fact offered a casual position to her. The dimensions though of that position were not completely clear to [the worker]. Her then current position was a full-time, 38 hour per week position and the proposal as put by [the employer] was for what appears to be a genuinely casual arrangement, with no guarantee of minimum hours."
Based on these findings, the FWC concluded that the dismissal was a genuine redundancy as defined in the Fair Work Act. The Commission stated:
"I am satisfied for the reasons set out above that [the worker's] dismissal by [the employer] was a 'genuine redundancy' as defined, one of the initial matters requiring determination under s.396. It follows that I must dismiss [the worker's] unfair dismissal application, an order doing so is issued at the same time as these reasons for decision."
This case provides insight into the FWC's interpretation of genuine redundancy in the context of global restructuring and highlights the importance of proper consultation and documentation throughout the redundancy process.
