The Fair Work Commission ruled that an employer's failure to consult and consider ways to avoid retrenchment rendered the redundancy non-genuine.
The meaning of “genuine redundancy” is defined in Section 389 of the Fair Work Act as follows:
(1) A person’s dismissal was a case of genuine redundancy if:
(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy. (emphasis added)
MySharedServices Pty Ltd dismissed a consultant little more than a week after the Morrison Government revealed the details of its JobKeeper wage subsidy program.
The Commission accepted that the Company no longer required the role performed by the consultant to be performed by anyone because of changes in its operational requirements and it therefore met the requirements of the Fair Work Act's s389(1)(a). However, the Commissioner found the Company did not comply with its obligation under the relevant Award to consult with the employee, and this meant the redundancy could not be found to be genuine.
The Commissioner said that:
The Commissioner accepted that the dismissal as such was not a “genuine redundancy” and said she would order compensation after the parties provide further submissions.
This should serve as a warning to all employers to pay attention to the process when dealing with redundancies.
Matthew Browne v MySharedServces Pty Ltd  Fair Work Commission 4445
Disclaimer: This summary is a guide only and is not legal advice. For more information on redundancy, call NECA Legal (WA) Pty Ltd on 6241 6129 or email firstname.lastname@example.org