The Fair Work Commission has confirmed its approach to
deciding whether a dismissal is a genuine redundancy within the
meaning of section 389 of the Fair Work Act 2009 (Cth)
In Paul Williams and Ors v Staples Pty Ltd  FWC
607, four employees were reinstated when the Fair Work Commission
found their dismissals were not genuine redundancies under section
389. The dismissals were found to be harsh, unreasonable and
Following a decision to lower operating costs, the employer made
12 permanent full-time employees redundant. While the site as a
whole was operating under budget, the warehouse unit (where the
redundant employees were employed) had been consistently operating
over budget for a period of 18 months.
The employer announced the decision to make redundancies on 11
July 2016 to a Joint Consultative Committee (JCC), which was
required to be formed under the consultation provisions of the
Enterprise Agreement (EA). The employer used a selection matrix to
assess staff, and on 13 July 2016 informed 12 employees they were
being made redundant.
The employer argued that the redundancies were genuine within
the meaning of section 389 of the FWA because:
it no longer required the 12 jobs to be performed due to a
decrease in the volume of work and an increase in operating
while the process was expedited, the consultation requirements
in the EA were met as meetings were held with the JCC and
it was unreasonable to redeploy the employees as they lacked
the qualifications or skills to perform any of the other available
positions in the business.
Four of the redundant employees disputed their redundancies,
arguing that the dismissals were unfair because:
the consultation provisions under the EA were not met;
the employer had not properly explored redeployment options;
there had been no opportunity to challenge the basis for their
Commissioner Cambridge held that the employer's manifest
failure to comply with the consultation provisions of the EA and
the redeployment requirements of the FWA were so
'significantly non-compliant as to be grossly
deficient' and as such the dismissals were not genuine
redundancies and were unjust, entirely unreasonable and harsh in
The Commissioner said the employer's approach was unduly
hasty, largely tokenistic and grossly deficient. The expedited
process meant there was no opportunity for employees to give their
views or discuss options to mitigate the adverse effects of the
redundancies. Further, while the employer was obliged to involve
the JCC in decision-making, the employees were not consulted about
the composition or application of the selection matrix used to
decide redundancies and there was no opportunity for the employees
to challenge or review the selection matrix.
The Commissioner also found that the employer had overlooked
realistic opportunities to contemplate redeploying the employees
into one of the better performing areas of the business. This
failure was highlighted by the employer hiring 19 new employees in
December 2016 under provisions in the EA requiring the employer to
increase the number of permanent employees at the site by 20 before
the end of 2016. The Commissioner found that the 19 new employees
had essentially been engaged in jobs that were made redundant when
the 12 employees had been dismissed in July 2016.
This case illustrates that employers, when considering making
employees redundant, need to engage in a genuine, fair and
meaningful consultation process with employees. Making token
attempts at consultation is insufficient. Proper consideration
needs to be given to determining whether the employees can be
redeployed into other areas of the business.
Cooper Grace Ward is a leading Australian law firm based in
This publication is for information only and is not legal
advice. You should obtain advice that is specific to your
circumstances and not rely on this publication as legal advice. If
there are any issues you would like us to advise you on arising
from this publication, please contact Cooper Grace Ward
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
This decision outlines the potential pitfalls of an employee making public comments on Facebook outside of work hours.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).