Archive: May 9, 2022, 12:00 AM
Commission finds redundancy to be unfair where employer failed to meaningfully consult or consider redeployment
The Commission has found that a Principal Legal Officer (applicant) who was selected for redundancy to be entitled to compensation for loss. The Commission held that while the dismissal was a case of genuine redundancy, that the employer (respondent) had not provided meaningful consultation with the applicant, and that the applicant was overlooked for redeployment, rendering the dismissal unfair.
The respondent’s primary purpose was the pursuit and resolution of native title claims. The applicant was employed as a Senior Lawyer with the respondent from 2001 until 2007, and later re-employed in 2017. In 2019, the applicant was appointed to the position of Principal Legal Officer.
In June 2021, because of the settlement of the native title claims, the applicant’s position was made redundant. The applicant brought a claim challenging the termination of employment and seeking to be reinstated.
The application was brought on three main grounds, being that:
- There was no genuine redundancy as there remained a significant amount of legal work to be performed for the foreseeable future;
- There was a failure to properly consult; and
- The applicant's selection for redundancy while another lawyer was retained was not appropriate.
The Commission held that the restructuring of the legal team was in response to a true assessment of the respondent’s business needs, and the redundancy was genuine. The Commission reiterated, however, that even in instances of a genuine redundancy, a decision to terminate employment may still be harsh, unjust, or unreasonable.
The Commission determined that the failure of the respondent to inform the applicant that one legal role would be retained, deprived the applicant of a fair opportunity to make a case in relation to redeployment. As such, there was no meaningful consultation in the process of redundancy, and the dismissal was unfair.
The Commission further held that the preference of the respondent to retain a fixed-term employee, over the applicant, was contrary to the principle that permanent employees can have a degree of expectation of ongoing employment. The Commission noted that the conscious decision of the respondent to preference the applicant for redundancy, on the grounds that the fixed term employee would not be eligible for a redundancy entitlement, could, in some circumstances, constitute a form of discrimination against the applicant based on his workplace right. The Commission also considered that the terms of the respondent’s industrial agreement contained clauses regarding the retention of mature age workers, and that the respondent should have considered this.
The Commission held that reinstatement was not practicable, given that the termination of employment was the result of a genuine redundancy, and found that the applicant should be compensated.
The decision can be read here.