Think the redundancy isn’t genuine? Feel like challenging it? Consult a redundancy lawyer

So as not to be found unfair, harsh, unjust, or unreasonable, a dismissal due to redundancy must comply with the following requirements:

• It must be genuine.
• There must be consultation prior to implementing the redundancy.
• There must be an effort to redeploy the employees who are made redundant.
• Redundancy entitlements must be paid to them.

In the case of Paul Williams &Ors v. Staples Australia Pty Ltd [2017] FWC 607 (3 February 2017), twelve warehouse workers were made redundant by their employer, a supplier of office products. Of the twelve employees, only four challenged their dismissal as being unjust, harsh and unreasonable.

They questioned the genuineness of the redundancy; they questioned the genuineness of the consultation; they questioned that lack of sincere effort to redeploy them.

The office supply company questioned the jurisdiction of the Fair Work Commission and its power to hear and decide the claim. It also claimed that it had to cut back the number of workers because the worksite was operating over its budget. It had overshot its budget by $1,000,000 in the last year. Thus, met the workers. The office supply company said that 60% of the overhead expenses at the worksite was due to employee salaries. Thus, to stay within budget, some positions were to be terminated. A day after the meeting, the office supply company had chosen 12 employees. These 12 employees were terminated due to redundancy and they received their entitlements.

Four of those employees questioned their dismissal. They presented evidence that for two years prior to the redundancy, the office supply company went under budget. They presented photographs of banners announcing that the operations were so efficient, they stayed well below their budget.

They also presented evidence that there were no real criteria for determining whom to make redundant. One employee was told that she was going to be made redundant because she had an attitude problem toward management. The employee was a union delegate. Naturally, as a union representative, she represented union members who may be afraid to speak with management.

There was also evidence that although the positions would be made redundant, some of the duties and roles of the redundant positions would be given to others. Lastly, the four employees were not given the opportunity to explore options such as redeployment in other roles or functions or redeployment in other worksites owned by the company. There existed an enterprise agreement in the workplace that required genuine consultation to be made prior to the implementation of the redundancy.

The Fair Work Commission has the power to consider the merits of the application and to decide whether the dismissal was a case of genuine redundancy. There is a genuine redundancy when the employer no longer required the employee’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and the employer complied with its obligations in a modern award or an enterprise agreement.

The FWC found that no genuine consultation was made, instead, the office supply company announced that it had decided to make some employees redundant. Meaning, a decision had already been made to declare some positions redundant. The employer did not invite the employees to give their views on the proposed redundancy because it had already decided to implement the redundancy. This is a breach of the enterprise agreement.

The very next day after the announcement, the office supply company already had a list of twelve names. This list was compiled hastily, and it did not examine potential redeployment opportunities at other business units of the employer that operated in the same worksite. It simply concluded that the warehouse employees were not fit to work in positions in other units or departments of the employer’s business.

The dismissal was thus, harsh, unjust and unreasonable. There was no valid reason for the dismissal relating to the employee’s capacity or conduct. Their dismissal was for redundancy but their selection for redundancy was based on their capacity or conduct. The process of the employer to restructure the operations in the warehouse was so severely flawed that it was unreasonable. Thus, the FWC ruled that the dismissal was not for a genuine redundancy and was harsh, unreasonable and unjust.

The FWC also ordered the reinstatement of the applicants as the failure of the employer to comply with consultation obligations was not minor or inconsequential. There were reasonable prospects of redeployment into positions within the company. There was no evidence that the employment relationships had deteriorated, and the workers had unblemished work records.

Is your employer making your position redundant? And you don’t think that the redundancy is genuine? Do you feel like challenging it and you want to know if you have sufficient grounds to challenge your dismissal? Call the redundancy lawyers at MKI Legal. We are willing to help you.

Mki Legal, is a specialist employment law firm operating in Perth, Western Australia.