“In this case the Applicant’s position was redundant. However, it is not a genuine redundancy…”. These words are a direct quote from a recent Fair Work Australia decision. On its surface, this seems like a ridiculous outcome: on the one hand FWA is saying the employee is redundant, but then straight away says ‘but it isn’t genuine’. But the sentence continues ”.. due to the failure to consult and related to this the failure to adequately consider options for redeployment.”
The failure of the employer to “adequately consider options” led to a $38,000 payment to the former employee.
The enterprise agreement applying to the workplace included a standard consultation provision. Even though there was a major and public re-structure going in the workplace, FWA were not persuaded that this individual had been fairly treated. In making the decision FWA conceded it was unlikely to be any other job available for this individual, it was the process which was criticised, rather than the real-world outcome.
Once again this is a case which serves notice to employers that this legislation and the way it is applied by FWA is a minefield for them, and great care must be taken with the process as much as actually managing employment relationships. It could be costly otherwise.