A recent case before the Fair Work Commission has clarified requriements around ‘genuine’ redundancy consultation and communication with remote and distant staff when it comes to termination and sale of business.
Case Review
In this case the worker lodged an unfair dismissal claim after he we terminated via a voicemail on a Saturday afternoon.
The termination came as a result of the business being sold. The worker, who had been employed for 4 years, would not be required by the new operators and so his employment would come to an end with the sale of the business.
Deputy President Theresa Dobson, found the dismissal to be unfair and awarded the worker compensation for lost wages and cost of upskilling. DP Dobson noted that “[w]hilst it appears that the [employer] no longer required the job to be performed by anyone following the sales of the business”, it was not a genuine redundancy as it failed to consult him”.
“Further I consider that the [employer’s] action in dismissing the [driver] on a Saturday afternoon by voicemail was disrespectful and discourteous.”
She therefore ordered it to pay to $16,380 plus superannuation of 10.5%, along with an additional $530 to cover the cost of “upskilling” his HR (heavy rigid vehicle) licence “which enabled him to find new employment”.
Learnings for all businesses
“While the Commission acknowledged in this case that the sae of the business meant that the employer did not require the work to be done by anyone, ad thus there was a redundancy, what is important to note is that the redundancy did not meet the level of ‘genuine redundancy’ because the business failed to consult with the employee”, explains ACAPMAs Elisha Radwanowski.
“Consultation is a critical element to ensuring that businesses are meeting the requriements for a compliant ‘genuine’ redundancy. Even when the outcome, in this case a sale of the business, is certain, consultation is critical for the process to be fair”.
Here To Help
HR Highlights are things to consider, implement and watch out for in your business. They are provided as general advice and you should seek further advice on your situation by emailing employment@acapma.com.au to get in contact with one of ACAPMA Workplace Relations Professionals, its free for members.
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Elisha Radwanowski BCom(HRM&IR)
ACAPMA
