Those good-natured consultation requirements contained
in modern awards (and enterprise agreements) have shown their teeth
in a recent decision by the Fair Work Commission that resulted in
InfoTrak Pty Ltd paying a redundant employee over $10,000 in
When Georg Thomas' employment was terminated on account of
redundancy, he lodged an unfair dismissal claim. But what about the
exemption you say? In order to escape the perils of an unfair
dismissal claim, an employer has to do a little more than simply
To amount to a "genuine redundancy" for the purposes
of the unfair dismissal exemption, three boxes must be ticked.
First, the termination must actually be because the employer no
longer requires the employee's job to be performed by anyone,
and not a lazy approach to managing performance or conduct issues.
InfoTrak cleared this hurdle because of cashflow problems.
An employer must then comply with consultation obligations in
any applicable modern award or enterprise agreement. This
obligation is often overlooked. Indeed, it's where InfoTrak
dropped the ball. Mr Thomas was covered by the Professional
Employees Award 2010, and like all modern awards, it required
InfoTrak to have a compulsory heart-to-heart with Mr Thomas
prior to making a decision in relation to
The third box to tick to meet the "genuine redundancy"
exemption is exploring possible redeployment opportunities within
both the employer's business and associated entities.
Consultation obligations are designed to facilitate this process by
compelling employers and employees to get together to chat about
potential alternatives to dismissal.
The FWC found that had InfoTrak complied with its consultation
obligations, an alternative to termination may have been
identified, ordering a $10,000 payment in compensation. A very
costly procedural mishap, and a very good reason to consult.
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